Exhibit 10.12
EXHIBIT A TO AGREEMENT
RESTRICTED STOCK AGREEMENT
FOR
XXXXX X. XXXXX
This RESTRICTED STOCK AGREEMENT (the "Agreement") is made as of March 30,
2007, (the "Effective Date") between XXXXX INDUSTRIES INCORPORATED, a Delaware
corporation ("Company"), and XXXXX X. XXXXX, an individual resident in the State
of Florida ("Xx. Xxxxx").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its shareholders
to provide incentive to Xx. Xxxxx to remain with the Company by making this
grant of common stock in accordance with the terms of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Award of Restricted Stock. The Board hereby grants to Xx. Xxxxx Two Hundred
Thousand (200,000) shares of common stock, par value $0.0001 per share (the
"Common Stock"), of the Company (collectively the "Restricted Stock").
2. Vesting of Restricted Stock.
(a) Except as otherwise provided in Sections 2(b), 2(c), 2(d) and 4
hereof, One Hundred Thousand (100,000) of the shares of Restricted Stock shall
become vested as of the date hereof and One Hundred Thousand (100,000) of the
shares of Restricted Stock shall become vested as of December 31, 2007 (the
"Vesting Date"), provided with respect to the second block of Restricted Stock
that the Continuous Service (as defined in Section 2(d)(iii) below) of Xx. Xxxxx
continues through the Vesting Date.
(b) There shall be no proportionate or partial vesting of shares of
Restricted Stock in or during the months, days or periods prior to the Vesting
Date, and all vesting of shares of Restricted Stock shall occur only on the
Vesting Date. Upon the termination or cessation of Xx. Xxxxx'x Continuous
Service, any portion of the Restricted Stock that is not yet then vested, and
which does not then become vested pursuant to this Section 2, shall be subject
to re-purchase by the Company from Xx. Xxxxx as provided in Section 4, below.
(b) Notwithstanding any other term or provision of this Agreement, the
Board shall be authorized, in its sole discretion, based upon its review and
evaluation of the performance of Xx. Xxxxx and of the Company, to accelerate the
vesting of any shares of Restricted Stock under this Agreement, at such times
and upon such terms and conditions as the Board shall deem advisable.
(c) In the event of Xx. Xxxxx'x death prior to the vesting of any
Restricted Stock and during Xx. Xxxxx'x Continuous Service during the term of
this Agreement, all of the shares of Restricted Stock subject to this Agreement
shall be immediately vested as of the date of death and shall be delivered,
subject to any requirements under this Agreement, to the beneficiary or
beneficiaries designated by Xx. Xxxxx, or if Xx. Xxxxx has not so designated any
beneficiary(ies), or no designated beneficiary survives Xx. Xxxxx, such shares
shall be delivered to the personal representative of Xx. Xxxxx'x estate.
(e) For purposes of this Agreement, the following terms shall have the
meanings indicated:
(i) "Continuous Service" shall mean the continuous service to the
Company or a Related Entity, without interruption, of Xx. Xxxxx, in Xx. Xxxxx'x
capacity as a member of the Board or the board of directors of any Related
Entity. Continuous Service shall not be considered interrupted (or to have
ceased or terminated) in the case of (1) any approved leave of absence, (2)
transfers among the Company, any Related Entity, or any successor thereto, so
long as Xx. Xxxxx continues in his capacity as a Director thereof, or (3) any
change in status (e.g., from Chairman to Director), if and so long as (x) Xx.
Xxxxx remains in the service of the Company or a Related Entity in the capacity
of Director (except as otherwise provided herein), and (y) which change in
status is approved in writing by the Company or a Related Entity in its sole
discretion (with an express acknowledgement that such change in status
continues, and does not cease or terminate, "Continuous Service" for purposes of
this Agreement). An approved leave of absence shall include sick leave or any
other authorized personal leave approved by the Company in writing.
(iii) "Non-Vested Shares" means any portion of the Restricted Stock
subject to this Agreement that has not become vested pursuant to this Section 2.
(iv) "Related Entity" shall mean any Subsidiary, and any business,
corporation, partnership, limited liability company, trust or other entity in
which the Company or a Subsidiary holds a substantial ownership interest,
directly or indirectly.
(v) "Subsidiary" shall mean any corporation or other entity in which
the Company has a direct or indirect ownership interest of 50% or more of the
total combined voting power of the then outstanding securities or interests of
such corporation or other entity entitled to vote generally in the election of
directors or in which the Company has the right to receive 50% or more of the
distribution of profits or 50% or more of the assets on liquidation or
dissolution.
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(vi) "Vested Shares" shall mean any portion of the Restricted Stock
subject to this Agreement that is and has become vested pursuant to this Section
2.
3. Delivery of Restricted Stock.
(a) One or more stock certificates evidencing the Restricted Stock shall
be issued in the name of Xx. Xxxxx but shall be held and retained by the
Secretary of the Company until the latest date on which the shares subject to
this Restricted Stock award become Vested Shares pursuant to Section 2 hereof
(the "Applicable Date"). All such stock certificates shall bear the following
legends, along with such other legends that the Board shall deem necessary and
appropriate or which are otherwise required or indicated pursuant to any
applicable stockholders agreement:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A
REGISTRATION UNDER THE 1933 ACT AND SUCH OTHER APPLICABLE LAWS (AS
APPLICABLE) IS IN EFFECT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SAID ACT AND LAWS AS CONFIRMED TO THE ISSUER BY
AN OPINION (IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER) OF
COUNSEL (SATISFACTORY TO THE ISSUER).
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
SUBSTANTIAL VESTING AND OTHER 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, AND INCLUDE VESTING CONDITIONS WHICH
MAY RESULT IN THE COMPLETE FORFEITURE OF THE SHARES.
(b) Xx. Xxxxx shall deposit with the Company stock powers or other
instruments of transfer or assignment, duly endorsed in blank with signature(s)
guaranteed, corresponding to each certificate representing shares of Restricted
Stock until such shares become Vested Shares. If Xx. Xxxxx shall fail to provide
the Company with any such stock power or other instrument of transfer or
assignment, Xx. Xxxxx hereby irrevocably appoints the Secretary of the Company
as his attorney-in-fact, with full power of appointment and substitution, 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.
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(c) On the Applicable Date (as defined in Section 3(a) above) or as soon
as administratively practicable thereafter, the Company shall promptly cause a
new certificate or certificates to be issued for and with respect to all Vested
Shares and shall deliver the new certificate or certificates, to Xx. Xxxxx. The
new certificate or certificates shall continue to bear those legends and
endorsements that the Company shall deem necessary or appropriate (including
those relating to restrictions on transferability and/or obligations and
restrictions under the Securities Laws).
4. Termination or Cessation of Continuous Service. Upon the termination or
cessation of Xx. Xxxxx'x Continuous Service, any portion of the Restricted Stock
that is not yet then vested, and which does not then become vested pursuant to
Section 2, shall be subject to re-purchase by the Company from Xx. Xxxxx, and
Xx. Xxxxx shall sell to the Company upon the exercise of such right by the
Company, at a purchase price of fifteen cents per share (adjusted as reasonably
determined by the Board for any dividends, splits or recapitalizations that
occur after the date hereof), the number of shares of Restricted Stock (rounded
up to the nearest whole share) not yet then vested. The number of shares of Xx.
Xxxxx'x Shares subject to repurchase, at the time of any stock dividend or other
distribution made on or in respect of Xx. Xxxxx'x Shares or any subdivision,
combination, redemption or reclassification of the outstanding capital stock of
the Company or received in exchange for Xx. Xxxxx'x Shares or any part thereof,
shall be adjusted to give effect to such stock dividend, other distribution,
subdivision, combination, redemption or reclassification. The Board shall have
the power and authority to enforce on behalf of the Company any and all rights
of the Company under this Agreement in the event of Xx. Xxxxx'x forfeiture of
Non-Vested Shares pursuant to this Section 4.
5. Rights with Respect to Restricted Stock.
(a) Except as otherwise provided in this Agreement, Xx. Xxxxx shall have,
with respect to all of the shares of Restricted Stock, whether Vested Shares or
Non-Vested Shares, all of the rights of a holder of shares of common stock of
the Company, including without limitation (i) the right to vote such Restricted
Stock, (ii) the right to receive cash dividends, if any, as may be declared on
the Restricted Stock from time to time, and (iii) the rights available to all
holders of shares of common stock of the Company upon any merger, consolidation,
reorganization, liquidation or dissolution, stock split-up, stock dividend or
recapitalization undertaken by the Company; provided, however, that all of such
rights shall be subject to the terms, provisions, conditions and restrictions
set forth in this Agreement (including without limitation conditions under which
all such rights shall be forfeited).
(b) If at any time while this Agreement is in effect (or shares granted
hereunder shall be or remain unvested while Xx. Xxxxx'x Continuous Service
continues and has not yet terminated or ceased for any reason), there shall be
any increase or decrease in the number of issued and outstanding shares of
Common Stock of the Company through the declaration of a stock dividend or
through any recapitalization resulting in a stock split-up, combination or
exchange of such shares, then and in that event, the Board shall make any
adjustments it deems fair and appropriate, in view of such change, in the number
of shares of Restricted Stock then subject to this Agreement. If any such
adjustment shall result in a fractional share, such fraction shall be
disregarded.
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(c) Notwithstanding any term or provision of this Agreement to the
contrary, the existence of this Agreement, or of any outstanding Restricted
Stock awarded hereunder, shall not affect in any manner the right, power or
authority of the Company to make, authorize or consummate: (i) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger, consolidation or
similar transaction by or of the Company; (iii) any offer, issue or sale by the
Company of any capital stock of the Company, including any equity or debt
securities, or preferred or preference stock that would rank prior to or on
parity with the Restricted Stock and/or that would include, have or possess
other rights, benefits and/or preferences superior to those that the Restricted
Stock includes, has or possesses, or any warrants, options or rights with
respect to any of the foregoing; (iv) the dissolution or liquidation of the
Company; (v) any sale, transfer or assignment of all or any part of the stock,
assets or business of the Company; or (vi) any other corporate transaction, act
or proceeding (whether of a similar character or otherwise).
6. Transferability. The shares of Restricted Stock are not transferable until
and unless they become Vested Shares in accordance with this Agreement. The
terms of this Agreement shall be binding upon the executors, administrators,
heirs, successors and assigns of Xx. Xxxxx. Any attempt to effect a Transfer of
any shares of Restricted Stock prior to the date on which the shares become
Vested Shares shall be void ab initio. For purposes of this Agreement,
"Transfer" shall mean any sale, transfer, encumbrance, gift, donation,
assignment, pledge, hypothecation, or other disposition, whether similar or
dissimilar to those previously enumerated, whether voluntary or involuntary, and
including, but not limited to, any disposition by operation of law, by court
order, by judicial process, or by foreclosure, levy or attachment.
Notwithstanding the foregoing, the shares of restricted Stock may be Transferred
to any member of Xx. Xxxxx'x immediate family, to any trust or other entity of
which Xx. Xxxxx and members of his family are the sole beneficiaries or the
beneficial holders of all equity interests. Any shares of Restricted Stock
transferred pursuant to the immediately preceding sentence shall remain subject
to the right of repurchase in favor of the Company provided for herein.
7. Amendment, Modification & Assignment; Non-Transferability. This Agreement may
only be modified or amended in a writing signed by the parties hereto.
8. Complete Agreement. This Agreement embodies the complete agreement between
the parties with respect to the subject matter hereof, and supersedes any and
all prior promises, assurances, commitments, agreements, undertakings or
representations, whether oral, written, electronic or otherwise, and whether
express or implied, which may relate to the subject matter hereof in any way.
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9. Miscellaneous.
(a) No Right to Continued Employment or Service. This Agreement shall not
confer upon Xx. Xxxxx any right to continued employment or service with the
Company or any Related Entity.
(b) No Limit on Other Compensation Arrangements. Nothing contained in this
Agreement shall preclude the Company or any Related Entity from adopting or
continuing in effect other or additional compensation plans, agreements or
arrangements, and any such plans, agreements and arrangements may be either
generally applicable or applicable only in specific cases or to specific
persons.
(c) Severability. If any term or provision of this Agreement is or becomes
or is deemed to be invalid, illegal or unenforceable in any jurisdiction or
under any applicable law, rule or regulation, then 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 hereunder shall remain in full force and effect).
(d) Law Governing. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York (without
reference to the conflict of laws rules or principles thereof).
(e) Interpretation. Xx. Xxxxx accepts the Restricted Stock subject to all
of the terms, provisions and restrictions of this Agreement. Xx. Xxxxx hereby
accepts as binding and conclusive all decisions or interpretations of the Board
upon any questions arising under this Agreement.
(f) Headings. Section, paragraph and other headings and captions are
provided solely as a convenience to facilitate reference and such headings and
captions shall not be deemed in any way relevant to the meaning or
interpretation of any provision of this Agreement.
(g) Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by air courier or first class certified or registered mail, return
receipt requested and postage prepaid, addressed as follows:
If to Xx. Xxxxx, to: 0000 Xxx Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000-0000
with a copy to: Xxxxxxxxx Xxxxxxx, P.A.
000 X. Xxxxxxx Xxxxx, Xxxxx 000-Xxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
If to the Company, to: Xxxxx Industries Incorporated
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxx Xxxx 00000
Attn: President
with a copy to: Xxxxx & Xxx Xxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. XxXxxx, Esq.
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or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of delivery if
personally delivered; on the business day after the date when sent if sent by
air courier; and on the third business day after the date when sent if sent by
mail, in each case addressed to such party as provided in this Section or in
accordance with the latest written direction from such party.
(h) Non-Waiver of Breach. The waiver by any party hereto of the other
party's prompt and complete performance, or breach or violation, of any term or
provision of this Agreement shall be effected solely in a writing signed by such
party, and shall not operate nor be construed as a waiver of any subsequent
breach or violation, and the waiver by any party hereto to exercise any right or
remedy which he or it may possess shall not operate nor be construed as the
waiver of such right or remedy by such party, or as a bar to the exercise of
such right or remedy by such party, upon the occurrence of any subsequent breach
or violation.
(i) Counterparts. This Agreement may be executed in two or more separate
counterparts, each of which shall be an original, and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have executed this Agreement as of the date first written above.
XXXXX INDUSTRIES INCORPORATED.
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------
President
AGREED AND ACCEPTED:
XXXXX. XXXXX:
/s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx
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