Exhibit 10.11
XXXXXXXX.XXX, INC.
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") is made effective as of
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April 9, 2001, by and between XXXXXXXX.XXX, INC., a Delaware corporation (the
"Company"), and [name of director] (the "Recipient").
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The Compensation Committee of the Board of Directors of the Company (the
"Committee") has determined that it is in the best interests of the Company and
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the Recipient to pay to the Recipient his Director's Fee in restricted shares of
common stock of the Company in lieu of cash in accordance with the terms of this
Agreement and the terms of that certain Letter Agreement dated as of April 9,
2001, by and between the Company and the Recipient.
The restricted shares are granted pursuant to the Company's Amended and Restated
Equity Incentive Plan (the "Plan") which is incorporated herein for all
purposes. The Recipient hereby acknowledges receipt of a copy of the Plan and
agrees to be bound by all the terms and conditions hereof and thereof. 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.
1. Award of Restricted Stock. The Committee hereby grants, as of April 9, 2001
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(the "Date of Grant"), to the Recipient, _______ shares of Restricted Stock of
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the Company (collectively the "Restricted Stock"). The Restricted Stock being
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issued to the Recipient under this Agreement shall be subject to all provisions
and restrictions set forth in this Agreement.
2. Vesting of Restricted Stock
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(a) Except as otherwise provided in Sections 2(b) and 3 hereof, the
Restricted Stock shall become vested in the following amounts and at the
following times, provided that the Recipient has continuously been a Director of
the Company through and on the applicable Vesting Date:
Shares of Restricted Stock Vesting Date
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_______ June 30, 2001
_______ September 30, 2001
_______ December 31, 2001
_______ March 31, 2002
Except as otherwise specifically provided herein, there shall be no
proportionate or partial vesting in the periods prior to each Vesting Date, and
all vesting shall occur only on the appropriate Vesting Date.
(b) Notwithstanding any other provisions of this Agreement, in the
event of a "Change in Control" (as defined herein) of the Company while the
Recipient is a Director of the Company, the Restricted Stock subject to this
Agreement shall become immediately vested as of the date of the Change in
Control. For purposes of this Agreement, a "Change in Control" change in
control shall be deemed to occur when or upon:
(i) Approval by the shareholders of the Company of a
reorganization, merger, consolidation or other form of corporate
transaction or series of transactions, in each case, with respect to which
persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation or other transaction do not,
immediately thereafter, own more than 50% of the combined voting power
entitled to vote generally in the election of directors of the reorganized,
merged or consolidated company's then outstanding voting securities, in
substantially the same proportions as their ownership immediately prior to
such reorganization, merger, consolidation or other transaction, or a
liquidation or dissolution of the Company or the sale of all or
substantially all of the assets of the Company (unless such reorganization,
merger, consolidation or other corporate transaction, liquidation,
dissolution or sale is subsequently abandoned); or
(ii) Individuals who, as of the date on which the Option is
granted hereof, constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the date on which the Option was
granted whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the Directors of the Company) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board; or
(iii) The acquisition (other than from the Company) by any
person, entity or "group", within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, of beneficial ownership
(within the meaning of Rule 13-d promulgated under the Securities Exchange
Act, of 40% or more of either the then outstanding shares of the Company's
Common Stock or the combined voting power of the Company's then outstanding
voting securities entitled to vote generally in the election of directors
(hereinafter referred to as the ownership of a "Controlling Interest")
excluding, for this purpose, any acquisitions by (1) a group whose primary
persons are members of the Rothschild family; (2) the Company or its
Subsidiaries, (3) any person, entity or "group" that as of the date on
which the Option is granted owns beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act) of a
Controlling Interest or (4) any employee benefit plan of the Company or its
Subsidiaries.
(c) Notwithstanding any other provisions of this Agreement, the
Committee shall be authorized in its discretion, based upon its review and
evaluation of the performance of the Recipient and of the Company, to accelerate
the vesting of any shares of the Restricted Stock
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under this Agreement, at such times and upon such terms and conditions as the
Committee shall deem advisable.
(d) The portion of the Restricted Stock with respect to which the
Recipient shall have become vested pursuant to this Section 2 are sometimes
referred to as the "Vested Shares", and any portion of Restricted Stock with
respect to which the Recipient shall not have become vested pursuant to this
Section 2 are sometimes referred to as the "Non-Vested Shares".
3. Delivery of Restricted Stock.
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(a) One or more stock certificates evidencing the Restricted Stock
shall be issued in the name of the Recipient but shall be held and retained by
the Company until the shares become Vested Shares. All such stock certificates
shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR STATE SECURITIES LAWS OR, IN THE
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER,
PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS AS SET FORTH IN THE RESTRICTED STOCK
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THE
SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL
OFFICE OF THE ISSUER. SUCH RESTRICTIONS ARE BINDING ON
TRANSFEREES OF THESE SHARES.
(b) The Recipient shall deposit with the Company stock
powers or other instruments of transfer or assignment, duly endorsed
in blank with signature guaranteed, corresponding to each certificate
for all shares of Restricted Stock until such shares become Vested
Shares. If the Recipient shall fail to provide the Company with any
such stock power or other instrument of transfer or assignment, the
Recipient hereby irrevocably appoints the Secretary of the Company as
his attorney-in-fact to execute and deliver any such power or other
instrument which may be necessary to effectuate the transfer of the
Restricted Stock (or assignment of distributions thereon) on the books
and records of the Company.
(c) In the event of the Recipient's death during the term of this
Agreement, all of the shares of Restricted Stock shall be Vested Shares and
shall be delivered, subject to any requirements under this Agreement or in the
Plan, to the beneficiary or beneficiaries designated by the Recipient, or if the
Recipient has not so designated any beneficiary, or no designated
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beneficiary survives the Recipient, such shares shall be delivered to
the personal representative of the Recipient's estate.
4. Termination of Service. If the Recipient's service on the Company's Board
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is terminated for any reason, any Non-Vested Shares shall be forfeited
immediately upon such termination of employment and revert back to the Company
without any payment to the Recipient. The Committee shall have the power and
authority to enforce on behalf of the Company any rights of the Company under
this Agreement in the event of the Recipient's forfeiture of Non-Vested Shares
pursuant to this Section 4.
5. Rights with Respect to Restricted Stock.
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(a) Except as otherwise provided in this Agreement, the Recipient
shall have, with respect to all the shares of Restricted Stock, all the rights
of a equity interest holder of the Company, including the right to vote such
Restricted Stock and the right to receive cash dividends, if any, as may be
declared on the Restricted Stock from time to time.
(b) In the event that the Shares of the Company, as a result of a
combination of Shares or any other change or exchange for other securities, by
reclassification, reorganization or otherwise, is increased or decreased or
changed into or exchanged for a different number or kind of Shares or other
securities of the Company or of another entity, the number of the Restricted
Stock shall be appropriately adjusted to reflect such change. If any such
adjustment shall result in a fractional share, such fraction shall be
disregarded.
6. Restrictions While Restricted Stock is Not Registered. Recipient
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acknowledges that he or she is acquiring the Restricted Stock for his or her own
account and for the purpose of investment and not with a view to any
distribution or resale thereof within the meaning of the Securities Act of 1933,
as amended (the "Act"), and any applicable state or other securities laws
("State Acts"). The Recipient further agrees that it will not sell, assign or
transfer the Restricted Stock at any time in violation of the Act or State Acts
and acknowledges that, in taking unregistered securities, Recipient must
continue to bear the economic risk of his or her investment for an indefinite
period of time because of the fact that the Restricted Stock has not been
registered under the Act or State Acts, and further realizes that the Restricted
Stock cannot be sold unless subsequently registered under the Act and State Acts
or an exemption from such registration is available. The Recipient further
recognizes that the Company is not assuming any obligation to register the
Restricted Stock except as expressly set forth herein. The Recipient also
acknowledges that appropriate legends reflecting the status of the Restricted
Stock under the Act and State Acts may be placed on the face of the certificates
for such Restricted Stock at the time of their transfer and delivery to the
holder thereof.
7. Taxes.
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(a) If the Recipient properly elects, within thirty (30) days of the
Date of Grant, to include in gross income for federal income tax purposes an
amount equal to the fair market value (as of the Date of Grant) of the
Restricted Stock pursuant to Section 83(b) of the Internal Revenue Code of 1986,
as amended (the "Code"), the Recipient shall make
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arrangements satisfactory to the Committee to pay to the Company any federal,
state or local income taxes required to be withheld with respect to the
Restricted Stock. If the Recipient shall fail to make such tax payments as are
required, the Company shall, to the extent permitted by law, have the right to
deduct from any payment of any kind otherwise due to the Recipient any federal,
state or local taxes of any kind required by law to be withheld with respect to
the Restricted Stock.
(b) If the Recipient does not make the election described in
Subsection 7(a) above, the Recipient shall, no later than the date as of which
the restrictions referred to in this Agreement hereof shall lapse, pay to the
Company, or make arrangements satisfactory to the Committee for payment of, any
federal, state or local taxes of any kind required by law to be withheld with
respect to the Restricted Stock, and the Company shall, to the extent permitted
by law, have the right to deduct from any payment of any kind otherwise due to
Recipient any federal, state, or local taxes of any kind required by law to be
withheld with respect to the Restricted Stock.
8. Amendment, Modification and Assignment. No provision of this Agreement may
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be modified, waived or discharged unless such waiver, modification or discharge
is agreed to in writing signed by the Recipient and the Committee. No waiver by
either party of any breach by the other party hereto of any condition or
provision of this Agreement shall be deemed a waiver of any other conditions or
provisions of this Agreement. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement.
Unless otherwise consented to by the Committee, this Agreement shall not be
assigned by the Recipient in whole or in part. The rights and obligations
created hereunder shall be binding on the Recipient and his heirs and legal
representatives and on the successors and assigns of the Company.
9. Miscellaneous.
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(a) No Right to Employment or Service. The grant of the Restricted
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Stock shall not be construed as giving the Recipient the right to be retained in
the employ of the Company or perform services thereto.
(b) No Limit on Other Compensation Arrangements. Nothing contained in
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this Agreement shall preclude the Company from adopting or continuing in effect
other or additional compensation arrangements, and such arrangements may be
either generally applicable or applicable only in specific cases.
(c) Severability. If any provision of this Agreement is or becomes or
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is deemed to be invalid, illegal or unenforceable in any jurisdiction or would
disqualify this Agreement or the award of Restricted Stock under any applicable
law, such provision shall be construed or deemed amended to conform to
applicable law (or if such provision cannot be so construed or deemed amended
without materially altering the purpose or intent of this Agreement and the
grant of Restricted Stock hereunder, such provision shall be stricken as to such
jurisdiction and the remainder of this Agreement and the award shall remain in
full force and effect).
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(d) No Trust or Fund Created. Neither this Agreement nor the grant of
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Restricted Stock shall create or be construed to create a trust or separate fund
of any kind or a fiduciary relationship between the Company and the Recipient or
any other person. To the extent that the Recipient or any other person acquires
a right to receive payments from the Company pursuant to this Agreement, such
right shall be no greater than the right of any unsecured general creditor of
the Company.
(e) Governing Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
Florida.
(f) Interpretation. The Recipient accepts the Restricted Stock
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subject to all the terms and provisions of this Agreement and the terms and
conditions of the Plan. The undersigned Recipient hereby accepts as binding,
conclusive and final all decisions or interpretations of the Committee upon any
questions arising under this Agreement.
(g) Headings. Headings are given to the Paragraphs and Subparagraphs
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of this Agreement solely as a convenience to facilitate reference. Such
headings shall not be deemed in any way material or relevant to the construction
or interpretation of this Agreement or any provision thereof.
10. Complete Agreement. This Agreement and those agreements and documents
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expressly referred to herein embody the complete agreement and understanding
among the parties and supersede and preempt 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
XXXXXXXX.XXX, INC., a Delaware
corporation
By:______________________________
Name:
Title:
Agreed and Accepted:
By:__________________________________
[Name of Director]
Director Number of shares
Xxx X. Xxxx 15,000
Xxxxxx X. XxXxxxxxx 25,000
Xxxxxxxxxx Xxxxxx 5,000
Xxxxx Xxxxxxx 12,500
Symbol Technologies 25,000
All vesting is 1/4 per vesting date.
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