RESTRICTED STOCK AGREEMENT
Exhibit
10.2
AGREEMENT
made as of the May 17, 2006, between SEQUIAM CORPORATION, a California
corporation (the “Company”), and Xxxx X. Xxxxxxxxxxx (“Employee”).
1.
Award.
(a)
Shares. In consideration of accrued and unpaid salary of $740,102.00 owed to
employee under the terms of the Amended And Restated Employment Agreement (the
“Agreement”), together with interest thereon in the amount of $108,002.00, the
Company shall issue 3,392,416 shares, based on the conversion price of $0.25
per
share (the “Restricted Shares”) of the Company's common stock, par value $0.001
per share (“Stock”), as hereinafter provided in Employee's name subject to
certain restrictions thereon.
(b)
Issuance of Restricted Shares. The Restricted Shares shall be issued upon
acceptance hereof by Employee and upon satisfaction of the conditions of this
Agreement.
(c)
Agreement Incorporated. Employee acknowledges receipt of a copy of the
Agreement, and agrees that this award of Restricted Shares shall be subject
to
all of the terms and conditions set forth in the Agreement, including future
amendments thereto, if any, pursuant to the terms thereof, which Agreement
is
incorporated herein by reference as a part of this Agreement.
2.
Restricted Shares.
Employee
hereby accepts the Restricted Shares when issued and agrees with respect thereto
as follows:
(a)
Forfeiture Restrictions. The Restricted Shares may not be sold, assigned,
pledged, exchanged, hypothecated or otherwise transferred, encumbered or
disposed of to the extent then subject to the Forfeiture Restrictions (as
hereinafter defined), and in the event of termination of Employee's employment
with the Company for a reason other than those set forth in the first sentence
of subparagraph (c) of this Paragraph 2, Employee shall, for no consideration,
forfeit to the Company all Restricted Shares to the extent then subject to
the
Forfeiture Restrictions. The prohibition against transfer and the obligation
to
forfeit and surrender Restricted Shares to the Company upon termination of
employment are herein referred to as “Forfeiture Restrictions.” The Forfeiture
Restrictions shall be binding upon and enforceable against any transferee of
Restricted Shares.
(b)
Lapse
of Forfeiture Restrictions. The Forfeiture Restrictions shall lapse as to the
Restricted Shares eighteen months from the date of this agreement provided
that
Employee has been continuously employed by the Company from the date of this
Agreement through the lapse date.
(c)
Notwithstanding the provisions of subparagraph (b) of Paragraph 2, the
Forfeiture Restrictions shall lapse as to all of the Restricted Shares on the
earlier of (i) the occurrence of a Corporate Change (as such term is defined
in
the Agreement), or (ii) the date Employee's employment with the Company is
terminated by reason of death, disability (disability being defined as being
physically or mentally incapable of performing Employee's usual duties as an
employee, with such condition likely to remain continuously and permanently,
as
determined by the Committee which administers the Agreement (the “Committee”)),
or (iii) involuntary termination by the Company other than for Cause or (iv)
Employee's termination of his employment with the Company (y) because of a
material breach by the Company of any material provision of any employment
agreement between the Company and Employee which remains uncorrected for thirty
(30) days following written notice of such breach by Employee to the Company
or
(z) within six (6) months of a material reduction in Employee's rank or
responsibilities with the Company. For purposes of this Agreement, the term
“Cause” shall mean any of (i) Employee's gross negligence or willful misconduct
in the performance of the duties and services required of Employee pursuant
to
this Agreement, (ii) Employee's final conviction of a felony; or (iii)
Employee's material breach of any material provision of this Agreement which
remains uncorrected for thirty (30) days following written notice to Employee
by
the Company of such breach.
(d)
Certificates. A certificate evidencing the Restricted Shares shall be issued
by
the Company in Employee's name, or at the option of the Company, in the name
of
a nominee of the Company, pursuant to which Employee shall have voting rights
and shall be entitled to receive all dividends unless and until the Restricted
Shares are forfeited pursuant to the provisions of this Agreement. The
certificate shall bear a legend evidencing the nature of the Restricted Shares,
and the Company may cause the certificate to be delivered upon issuance to
the
Secretary of the Company or to such other depository as may be designated by
the
Company as a depository for safekeeping until the forfeiture occurs or the
Forfeiture Restrictions lapse pursuant to the terms of the Agreement and this
award. Upon request of the Committee or its delegate, Employee shall deliver
to
the Company a stock power, endorsed in blank, relating to the Restricted Shares
then subject to the Forfeiture Restrictions. Upon the lapse of the Forfeiture
Restrictions without forfeiture, the Company shall cause a new certificate
or
certificates to be issued without legend in the name of Employee for the shares
upon which Forfeiture Restrictions lapsed. Notwithstanding any other provisions
of this Agreement, the issuance or delivery of any shares of Stock (whether
subject to restrictions or unrestricted) may be postponed for such period as
may
be required to comply with applicable requirements of any national securities
exchange or any requirements under any law or regulation applicable to the
issuance or delivery of such shares. The Company shall not be obligated to
issue
or deliver any shares of Stock if the issuance or delivery thereof shall
constitute a violation of any provision of any law or of any regulation of
any
governmental authority or any national securities exchange.
3.
Withholding of Tax.
To
the
extent that the receipt of the Restricted Shares or the lapse of any Forfeiture
Restrictions results in income to Employee for federal or state income tax
purposes, Employee shall deliver to the Company at the time of such receipt
or
lapse, as the case may be, such amount of money or shares of unrestricted Stock
as the Company may require to meet its withholding obligation under applicable
tax laws or regulations, and, if Employee fails to do so, the Company is
authorized to withhold from any cash or Stock remuneration then or thereafter
payable to Employee any tax required to be withheld by reason of such resulting
compensation income.
4.
Status
of Stock.
Employee
agrees that the Restricted Shares will not be sold or otherwise disposed of
in
any manner that would constitute a violation of any applicable federal or state
securities laws. Employee also agrees (i) that the certificates representing
the
Restricted Shares may bear such legend or legends as the Company deems
appropriate in order to assure compliance with applicable securities laws,
(ii)
that the Company may refuse to register the transfer of the Restricted Shares
on
the stock transfer records of the Company if such proposed transfer would be
in
the opinion of counsel satisfactory to the Company constitute a violation of
any
applicable securities law and (iii) that the Company may give related
instructions to its transfer agent, if any, to stop registration of the transfer
of the Restricted Shares. If Employee desires to sell any shares of Common
Stock
acquired pursuant to the provisions of this Agreement upon which restrictions
have theretofore lapsed and if such shares may not be sold on the open market
without registration pursuant to applicable securities laws, then the Company
shall, within five (5) days after notice from the Employee indicating his
intention to sell such shares and the number of shares to be sold, purchase
for
cash such shares at a price per share based on the closing sales price for
shares of Common Stock traded on the NASDAQ OTC:BB on the date of receipt by
the
Company of said notice.
5.
Employment Relationship.
For
purposes of this Agreement, Employee shall be considered to be in the employment
of the Company as long as Employee remains an employee of either the Company,
any successor corporation or a parent or subsidiary corporation (as defined
in
section 424 of the Code) of the Company or any successor corporation. The
Committee whether and when there has been a termination of such employment,
and
the cause of such termination, shall determine any question as to, and its
determination shall be final.
6.
Committee's Powers.
No
provision contained in this Agreement shall in any way terminate, modify or
alter, or be construed or interpreted as terminating, modifying or altering
any
of the powers, rights or authority vested in the Committee or, to the extent
delegated, in its delegate pursuant to the terms of the Agreement or resolutions
adopted in furtherance of the Agreement, including, without limitation, the
right to make certain determinations and elections with respect to the
Restricted Shares.
7.
Binding Effect.
This
Agreement shall be binding upon and inure to the benefit of any successors
to
the Company and all persons lawfully claiming under Employee.
8.
Governing Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Florida, excluding any conflict-of law rule or principle that
might
refer to the laws of another State or country.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
by an
officer thereunto duly authorized, and Employee has executed this Agreement,
all
as of the date first above written.
Sequiam
Corporation
By:
___________________________
Xxxxxxxx
X. XxxxxxXxxxxx
Chairman
of the Board and
Chief
Executive Officer
______________________________
Xxxx
X.
Xxxxxxxxxxx
Employee
Please
Check Appropriate Item (One of the boxes must be checked):
_____I
do
not desire the alternative tax treatment provided for in the Internal Revenue
Code Section 83(b).
_____*I
do desire the alternative tax treatment provided for in Internal Revenue Code
Section 83(b) and desire that forms for such purpose be forwarded to
me.
*
I
acknowledge that the Company has suggested that before this block is checked
that I check with a tax consultant of my choice.
Please
furnish the following information for shareholder records:
________________________________________
_____- ___- ______
(Given
name and initial must be used Social Security Number
for
stock
registry) (if applicable)
_________________________________________________________
Address
(Zip Code) Day phone number
United
States Citizen: Yes___ No___
