AMERICAN BUSINESS FINANCIAL SERVICES, INC.
RESTRICTED STOCK AGREEMENT
--------------------------
American Business Financial Services, Inc. (the "Corporation") hereby
awards Xxxxx Xxxxxxx ("Grantee") the restricted stock specified herein, as of
December 24, 2003 (the "Award Date"), in accordance with the terms and
conditions specified in this Restricted Stock Agreement, and pursuant to the
requirements contained in Section 4(a) of the Employment Agreement, dated as of
December 24, 2003, between the Corporation and the Grantee (the "Employment
Agreement"). Capitalized terms used in this Restricted Stock Agreement and not
otherwise defined shall have the meanings ascribed to them in the Employment
Agreement.
1. Share Award. Subject to Section 2(f) hereunder, the Corporation
hereby awards the Grantee 200,000 shares (the "Shares") of common stock, par
value $.001 per share, of the Corporation pursuant to the terms and conditions
and subject to the restrictions hereinafter set forth.
2. Restrictions on Transfer and Restricted Period.
(a) During the period (the "Restricted Period") commencing on
the Award Date and until the Shares are vested as provided in this Restricted
Stock Agreement, the unvested Shares may not be sold, assigned, transferred,
pledged, or otherwise encumbered by the Grantee, except as hereinafter provided.
(b) The Shares shall vest as follows:
(1) One Hundred Thousand (100,000) Shares will become
vested as of the earlier of the following:
(i) on the last day of the first calendar
month during the Term or Renewal Term in
which Wholesale Originations reach $100
million; or
(ii) on the first day of the month following
any month in 2004 in which the Corporation
loses its warehouse lines or is unable or
fails to maintain warehouse lines in amounts
sufficient to achieve monthly Wholesale
Originations of $100 million.
(2) An additional One Hundred Thousand (100,000)
Shares will become vested as of the last day
of the first calendar month during the Term
or Renewal Term in which Wholesale
Originations reach $200 million.
(3) Any Shares not previously vested shall
immediately vest upon (i) the effective date
on which Xxxxxxx X. Xxxxxxxx, Xx. ceases to
be the Chief Executive Officer of the
Corporation; (ii) the effective date of any
merger, consolidation or other transaction
involving the Corporation in which: (A) the
Corporation is not the resulting or
surviving entity and (B) the voting
shareholders of the Corporation immediately
prior to the effectiveness of such
transaction cease to control at least a
majority of the voting shares or interests
of the resulting or surviving entity; or
(iii) the effective date of any sale of
substantially all of the assets of the
Corporation to any entity other than an
entity controlled by the Corporation or an
entity owned by shareholders holding not
less than a majority of the voting shares of
the Corporation immediately prior to the
effectiveness of such transaction.
(4) If prior to January 1, 2005, Grantee's
employment with the Corporation is
terminated by the Corporation Without Cause,
or if Grantee resigns for Good Reason, then,
subject to the conditions relating to
delivery of a General Release contained in
Section 7 of the Employment Agreement,
100,000 Shares shall vest after the tenth
business day following the delivery of the
foregoing General Release.
(5) If on or after January 1, 2005, Grantee's
employment with the Corporation is
terminated by the Corporation Without Cause,
or if Grantee resigns for Good Reason, then,
subject to the conditions relating to
delivery of General Release contained in
Section 7 of the Employment Agreement, all
remaining unvested Shares shall vest after
the tenth business day following the
delivery of the foregoing General Release.
(6) If Corporation terminates Grantee's
employment in February 2005, because monthly
Wholesale Originations did not reach $100
million for at least one calendar month
before February 1, 2005, then, subject to
the conditions relating to delivery of a
General Release contained in Section 7 of
the Employment Agreement, a portion of the
Restricted Shares shall become vested. The
number of vested Restricted Shares shall be
calculated by multiplying 100,000 by the
fraction in which the numerator is the
dollar amount of the highest Wholesale
Originations achieved in any calendar month
prior to the date of termination and the
denominator is $100,000,000.
(7) If Grantee's employment terminates due to
his death or Disability and none of the
Shares have become vested as of the date of
termination due to death or Disability, then
a portion of the Restricted Shares shall
become vested. The number of vested
Restricted Shares shall be calculated by
multiplying 100,000 by the fraction in which
the numerator is the dollar amount of the
highest Wholesale Originations achieved in
any calendar month prior to the date of
termination and the denominator is
$100,000,000.
(c) Any Shares that have not vested as of the date of
termination of employment of Grantee by the Corporation or as a consequence
thereof will automatically be forfeited, cancelled and revert back to the
Corporation, except as otherwise provided in Section 7 of the Employment
Agreement.
(d) The Corporation's Compensation Committee (the "Committee")
shall have the authority, in its discretion, to accelerate the time at which any
or all of the restrictions shall lapse with respect to any Shares covered by
this Restricted Stock Agreement, or to remove any or all of such restrictions,
whenever the Committee may determine that such action is appropriate by reason
of changes in applicable tax or other laws, or other changes in circumstances
occurring after the commencement of the Restricted Period.
(e) If there are any conflicts between this Section 2 of the
Restricted Stock Agreement and the Employment Agreement, the provisions of the
Employment Agreement shall be controlling.
(f) The Grantee's issuance and receipt of the Shares pursuant
to this Restricted Stock Agreement is subject to the Corporation properly filing
with The NASDAQ Stock Market a Notification Form: Listing of Additional Shares
(the "NASDAQ Form") in such a manner that prevents the Corporation from being in
violation of the rules and regulations of The NASDAQ Stock Market. The
Corporation hereby agrees to use its best efforts to take all such action as may
be necessary to assure that the NASDAQ Form is properly filed and accepted by
The NASDAQ Stock Market.
3. Certificates for the Shares.
(a) The Corporation shall issue a certificate (or
certificates) in the name of the Grantee with respect to the Shares, and shall
deliver such certificate (or certificates) to the Grantee within ten (10) days
after the Award Date. Until expiration of the Restricted Period, such
certificate (or certificates) shall bear the following restricted legend (the
"Restrictive Legend"):
The transfer, assignment, pledge, sale and
encumbrance of this certificate and the shares of
stock represented hereby are subject to the terms
and conditions (including forfeiture) contained
in the Restricted Stock Agreement dated December
24, 2003 between Xxxxx Xxxxxxx and American
Business Financial Services, Inc. Copies of such
agreement are on file in the office of the
Secretary of American Business Financial
Services, Inc.
(b) The Grantee further agrees that within five (5) business days after
an event resulting in forfeiture of any of the Shares in accordance with the
Restricted Stock Agreement, the Grantee shall submit the original certificates
representing such Shares for cancellation by the Corporation, together with
stock powers in favor of the Corporation. The Corporation shall deliver to
Grantee, within five (5) business days after receipt of any certificate for
surrender pursuant to the foregoing sentence, a new certificate representing the
balance of any vested Shares covered by such certificate.
(c) The following two paragraphs shall be applicable if, on the Award
Date, the Shares subject to this Award has not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and under applicable
state securities laws, and shall continue to be applicable for so long as such
registration has not occurred:
(1) The Grantee hereby agrees, warrants and represents
that Grantee is acquiring the Shares to be issued
pursuant to this Restricted Stock Agreement for
Grantee's own account as compensation under the
Employment Agreement, and not with a view to, or in
connection with, any resale or other distribution of
any of such shares, except as hereafter permitted.
The Grantee further agrees that Grantee will not at
any time make any offer, sale, transfer, pledge or
other disposition of such common stock to be issued
hereunder without an effective registration statement
under the Securities Act of 1933, as amended, and
under any applicable state securities laws or an
opinion of counsel reasonably acceptable to the
Corporation to the effect that the proposed
transaction will be exempt from such registration.
The Grantee shall execute such instruments,
representations, acknowledgments and agreements as
the Corporation may, in its reasonable discretion,
deem advisable to avoid any violation of federal,
state, local or securities exchange rule, regulation
or law.
(2) The certificates for Shares to be issued pursuant to
this Restricted Stock Agreement shall bear the
following securities legend (the "Securities
Legend"):
The shares represented by this certificate have
not been registered under the Securities Act of
1933, as amended, or under applicable state
securities laws. The shares have been acquired
for the holder's own account and not for resale
or distribution and may not be offered, sold,
transferred, pledged or otherwise disposed of
without an effective registration statement
under the Securities Act of 1933, as amended,
and under any applicable state securities laws
or an opinion of counsel reasonably acceptable
to the Corporation that the proposed transaction
will be exempt from such registration.
(3) The Securities Legend shall be removed upon
registration of the legended shares under the
Securities Act of 1933, as amended, and under any
applicable state laws or upon receipt of any opinion
of counsel reasonably acceptable to the Corporation
that said registration is no longer required.
(4) The sole purpose of the agreements, warranties,
representations and legend set forth in the two
immediately preceding paragraphs is to prevent
violations of the Securities Act of 1933, as amended,
and any applicable state securities laws.
4. Grantee's Rights. Except as otherwise provided herein, the Grantee,
as owner of the Shares, shall have all rights of a stockholder with respect to
the Shares (other than those which are forfeited in accordance with the terms of
this Restricted Stock Agreement), including, without limitation, voting rights,
the right to dividends in cash and stock, and the right to notice of and to
participate in meetings of stockholders.
5. Expiration of Restricted Period; Rule 144. The Shares as to which
the Restricted Period shall have lapsed or expired shall no longer be required
to include the Restrictive Legend and Grantee may surrender his certificate for
reissuance accordingly. Notwithstanding the foregoing, the Securities Legend
shall continue to be included on the certificates until registration occurs or
an opinion of counsel reasonably acceptable to the Corporation has been obtained
concluding that registration is no longer required. So long as the Corporation
is subject to the reporting requirements of the Securities Exchange Act of 1934,
as amended, the Corporation shall use all reasonable efforts to file with the
Securities and Exchange Commission ("SEC") such information as the SEC may
require to enable Grantee to rely upon Rule 144 under the Securities Act and
shall cooperate with Grantee's efforts to comply with Rule 144 or other
applicable exemptions under the Securities Act.
6. Piggyback Registration Rights
(a) If at any time after Shares have vested in accordance with
the terms of this Restricted Stock Agreement, the Corporation proposes to
register any of its common stock under the Securities Act on a form that permits
inclusion of the Shares and under applicable state securities laws (the "State
Acts"), the Corporation shall give prompt written notice to Grantee of its
intention to do so. Upon the written request of Grantee made within 10 days
after the receipt of any such notice, which written request shall specify the
number of Shares Grantee desires to be registered, the Corporation shall use
commercially reasonable efforts to cause all such Shares of such shareholder to
be registered under the Securities Act, and State Acts under which the
Corporation intends to register, to permit the sale of such Shares in accordance
with the plan of distribution of the majority of the common stock to be
registered by such registration statement. Notwithstanding anything contained
herein to the contrary, the Corporation shall have the right to discontinue any
registration of such Shares of such shareholder at any time prior to the
effective date of such registration if the proposed registration of common stock
giving rise to the Corporation's notice under this Section 6(a) is discontinued
for any reason.
(b) If Grantee shall request inclusion of any Shares held by him in the
registration of other common stock of the Corporation and such proposed
registration by the Corporation is, in whole or in part, an underwritten public
offering, and if the managing underwriter determines and advises the Corporation
in writing that inclusion in such registration of all proposed securities
(including securities being offered by or on behalf of the Corporation and
securities covered by requests for registration) would adversely affect the
marketability of the offering of the securities proposed to be registered by the
Corporation, then such shareholder shall only be entitled to participate pro
rata (based on the number of shares owned by the respective holders) with the
other shareholders having similar piggyback incidental registration rights with
respect to such registration to the extent the managing underwriter determines
that such Shares may be included without such adverse effect on the
Corporation's offering.
(c) The rights of Grantee to have the Shares included in such a
registration under this Section shall expire on December 31, 2008.
7. Demand Registration Rights.
(a) At any time after all of the Shares have vested in
accordance with the terms of this Restricted Stock Agreement, the Corporation
shall, to the extent that, in the opinion of counsel to the Corporation, the
Corporation is legally qualified and entitled to do so under the Securities Act,
upon receipt of a written request of Grantee, promptly prepare and file under
the Securities Act a registration statement on Form S-8 (or any successor form)
in respect of such Shares and use its commercially reasonable efforts to cause
such registration statement to become effective. The Corporation shall be
required to prepare and file under the Securities Act no more than one
registration statement pursuant to this Section 7 (assuming that registration
statement is ultimately declared effective).
(b) The Grantee shall pay all expenses reasonably incident to
the Corporation's performance of or compliance with the provisions of this
Section 7, including, without limitation, all registration and filing fees, fees
and expenses of compliance with the Securities Act and any State Acts, printing
expenses, messenger and delivery expenses, reasonable fees and disbursements of
counsel for the Corporation and Grantee and all independent public accountants
and other persons retained by the Corporation, and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities (excluding
underwriting commissions and discounts).
(c) Whenever the Corporation is required to pursue the
registration of any Shares under the Securities Act as provided in Section 7:
(1) the Corporation shall promptly prepare and file
with the SEC such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and such prospectus current for a period not in
excess of nine months as may be necessary in accordance with the intended
methods of disposition by the Grantee;
(2) the Corporation will furnish to Grantee such
number of copies of such registration statement and each such amendment and
supplement thereto (in each case including all exhibits), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus), in conformity with the requirements of the Securities
Act, and such other documents as such seller may reasonably request in order to
facilitate the disposition of the Shares;
(3) the Corporation will notify Grantee at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and Grantee shall discontinue any sale of Shares until Grantee has
been advised that the registration statement has been amended, supplemented or
otherwise no longer contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; and
(4) the Corporation will use its commercially
reasonable efforts to register or qualify such Shares covered by such
registration statement under such State Acts as Grantee reasonably requests, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Shares owned by such seller, except that the Corporation
shall not for any such purpose be required to qualify to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified, to
subject itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction.
(d) The rights of Grantee to demand a registration under this
Section shall expire on December 31, 2008.
8. Indemnification and Notification.
(a) The Corporation shall indemnify and hold harmless Grantee
from and against any and all losses, claims, damages, expenses and liabilities
(including reasonable attorneys' fees) caused by any untrue statement of a
material fact contained in any such registration statement, or contained in a
prospectus furnished thereunder, or in any amendment or supplement thereto or
caused by any omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (provided, however, that
the foregoing indemnification and agreement to hold harmless shall not apply
insofar as such losses, claims, damages, expenses, and liabilities are caused by
any such untrue statement or omission is based upon information furnished in
writing to the Corporation by or on behalf of Grantee for use in any
registration statement or prospectus).
(b) In case any action is brought against Grantee and the
Corporation is notified of the commencement thereof as provided herein, the
Corporation shall be entitled to participate in, and, to the extent that it may
wish, to assume the defense thereof, with counsel reasonably satisfactory to
Grantee, and after notice from the Corporation to Grantee of the Corporation's
election so to assume the defense thereof, the Corporation shall not be liable
under this Restricted Stock Agreement for any legal or other expense
subsequently incurred by Grantee in connection with the defense thereof other
than reasonable costs of investigation.
(c) Grantee agrees to cooperate fully with the Corporation in
effecting registration and qualification of the Shares and of such distribution.
Grantee shall indemnify and hold harmless the Corporation and each person who
may control the Corporation within the meaning of Section 15 of the Securities
Act, each director of the Corporation, and each officer who signed any
registration statement from and against any and all losses, claims, damages,
expenses, and liabilities (including reasonable attorneys' fees), caused by any
untrue statement of a material fact contained in any such registration
statement, or contained in a prospectus furnished thereunder, or any amendment
or supplement thereto, or caused by any omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, to the extent that such untrue statement or omission was made in
reliance upon information furnished in writing to the Corporation by Grantee or
his agents or representatives for inclusion therein; provided, however, that
Grantee's liability under this Section 8(c) shall not exceed the dollar amount
of the proceeds obtained by Grantee from the sale of Shares under the related
registration statement.
9. Adjustments for Changes in Capitalization of the Corporation. In the
event of any change in the outstanding shares of common stock of the Corporation
by reason of any reorganization, recapitalization, stock split, stock dividend,
combination or exchange of shares, merger, consolidation, or any change in the
corporate structure of the Corporation or in the shares of its common stock, the
number and class of Shares covered by this Restricted Stock Agreement shall be
appropriately adjusted by the Committee in the same manner as other outstanding
shares are adjusted. Any shares of common stock or other securities received, as
a result of the foregoing, by the Grantee with respect to Shares subject to the
restrictions contained in Section 2 above also shall be subject to such
restrictions and the certificate or other instruments representing or evidencing
such shares or securities shall be legended in the manner provided in Section 3
above.
10. Delivery and Registration of Shares of Common Stock. the
Corporation's obligation to deliver Shares hereunder shall be conditioned upon
the receipt of a representation as to the intention of the Grantee not to
undertake any unlawful distribution or resale of the Shares or any other person
to whom such Shares are to be delivered, in such form as the Committee shall
determine to be necessary or advisable to comply with the provisions of the
Securities Act of 1933, as amended, or any other Federal, state or local
securities legislation or regulation. Any representation regarding a lack of
intent to resell or distribute shall become inoperative upon the registration of
such shares or an exemption from registration under such Securities Act or other
securities regulation.
11. Grantee Service. Nothing in this Restricted Stock Agreement shall
limit the right of the Corporation or any of its subsidiaries to terminate the
Grantee's service as an officer or employee, or otherwise impose upon the
Corporation or any of its subsidiaries any obligation to employ or accept the
services of the Grantee. (This Section is not intended to limit the rights of
the Grantee under the Employment Agreement).
12. Withholding and Social Security Taxes. To the extent required to do
so by law, the Corporation shall withhold from any distributions or payments to
Grantee an amount sufficient to cover taxes owed as a result of issuance of the
Shares hereunder or dividends or other distributions on such shares; provided,
however, that to the extent that the Corporation is entitled to issue to Grantee
a W-4 in accordance with the provisions of the Internal Revenue Code of 1986, as
amended, and the related regulations, then no such withholding shall be
required.
13. Tax Consequences. Grantee has reviewed with Grantee's own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Restricted Stock Agreement.
Grantee is relying solely on such advisors and not on any statements or
representations of Corporation or any of its agents. Grantee understands that
Grantee (and not Corporation) shall be responsible for Grantee's own tax
liability that may arise as a result of this investment or the transactions
contemplated by this Restricted Stock Agreement. Grantee understands that
Section 83 of the Internal Revenue Code of 1986, as amended (the "Code"), taxes
(as ordinary income) the fair market value of the Shares as of the date any
"restrictions" on the Shares lapse. To the extent that a grant hereunder is not
otherwise an exempt transaction for purposes of Section 16(b) of the Securities
and Exchange Act of 1934 (the "1934 Act"), with respect to officers, directors
and 10% shareholders, a "restriction" on the Shares includes for these purposes
the period after the grant of the Shares during which such officers, directors
and 10% shareholders could be subject to suit under Section 16(b) of the 1934
Act. Alternatively, Grantee understands that Grantee may elect to be taxed at
the time the Shares are granted rather than when the restrictions on the Shares
lapse, or the Section 16(b) period expires, by filing an election under Section
83(b) of the Code with the I.R.S. within 30 days from the date of grant.
GRANTEE ACKNOWLEDGES THAT IT IS GRANTEE'S SOLE RESPONSIBILITY AND NOT
THE CORPORATION'S TO FILE TIMELY THE ELECTION AVAILABLE TO GRANTEE UNDER SECTION
83(b) OF THE CODE, EVEN IF GRANTEE REQUESTS THAT THE CORPORATION OR ITS
REPRESENTATIVES MAKE THIS FILING ON GRANTEE'S BEHALF.
14. Arbitration. Any dispute or disagreement between Grantee and the
Corporation with respect to any portion of this Restricted Stock Agreement or
its validity, construction, meaning, performance or Grantee's rights hereunder
shall be settled by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA") or its successor, as
amended from time to time by a sole arbitrator. However, prior to submission to
arbitration Grantee agrees to attempt to resolve any disputes or disagreements
with the Corporation over this Restricted Stock Agreement amicably and
informally, in good faith, for a period not to exceed 14 days. Thereafter, if
the dispute or disagreement has not been resolved within that time period, will
be submitted to arbitration. The arbitrator shall be independent and impartial,
mutually acceptable to the parties and appointed by AAA. The arbitration shall
be held in Philadelphia, Pennsylvania or such other location as the parties may
mutually agree. At any time prior to a decision from the sole arbitrator being
rendered, Grantee and the Corporation may resolve the dispute by settlement. The
Grantee and the Corporation shall equally share the arbitrator's fee and the
costs charged by the AAA or its successor, but Grantee and the Corporation shall
otherwise be solely responsible for their own respective counsel fees and
expenses. The decision of the sole arbitrator shall be made in writing, setting
forth the award, the reasons for the decision and award and shall be binding and
conclusive on Grantee and the Corporation. Further, neither Grantee nor the
Corporation shall appeal any such award. Judgment of a court of competent
jurisdiction may be entered upon the Award and may be enforced as such in
accordance with the provisions of the Award.
15. Amendment/Choice of Law. This Restricted Stock Agreement and the
Employment Agreement constitute the entire understanding between the Corporation
and the Grantee with respect to the subject matter hereof and no amendment,
supplement or waiver of this Restricted Stock Agreement, in whole or in part,
shall be binding upon the Corporation unless in writing and signed by an
authorized officer of the Corporation, other than Grantee. The validity and
effect of this Restricted Stock Agreement, any disputes or controversies in any
way related to or arising out of this Restricted Stock Agreement or the Shares,
and the construction and meaning of this Restricted Stock Agreement shall be
determined under and governed by the laws of the Commonwealth of Pennsylvania.
16. Grantee Acceptance. Upon receipt of an executed copy of this
Restricted Stock Agreement from the Corporation, the Grantee shall signify
Grantee's acceptance of the terms and conditions of this Restricted Stock
Agreement by signing in the space provided below and returning an original
signed copy of this Restricted Stock Agreement to the Corporation no later than
December ___, 2003. IF A FULLY EXECUTED COPY HEREOF HAS NOT BEEN RECEIVED BY THE
CORPORATION ON OR BEFORE SUCH DATE, THE CORPORATION HAS THE RIGHT TO REVOKE THIS
AWARD, AND AVOID ALL OBLIGATIONS UNDER THIS RESTRICTED STOCK AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Restricted
Stock Agreement to be executed as of the date first above written.
AMERICAN BUSINESS FINANCIAL SERVICES, INC.
By:____________________________
Name:
Title:
ACCEPTED AND AGREED TO:
__________________________________
Xxxxx Xxxxxxx
{Signature Page to Restricted Stock Agreement}
