EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT,
dated
as of November 11, 2008, by and between Iconix Brand Group, Inc., a
Delaware corporation (the “Company”), and Xxxxxx Xxxxxx
(the “Executive”).
WITNESSETH
WHEREAS,
the Executive is currently the Chief Financial Officer of the Company;
and
WHEREAS,
the Company and Executive entered into an Employment Agreement dated as of
February 14, 2005 as amended as of October 27, 2006 (collectively,
the “Prior Agreement”); and
WHEREAS,
the Company wishes, among other things, to continue the Executive’s employment
with the Company beyond the term currently provided by the Prior Agreement
pursuant to the terms as provided herein;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and Executive hereby
agree as follows:
1. Engagement
of Executive; Duties. During
the Term (as hereinafter defined in Section 3 below), the Executive shall
have the titles of Executive Vice President and Chief Financial Officer of
the
Company and shall have such duties as may be from time to time delegated to
him
by the Chief Executive Officer of the Company. The Executive shall faithfully
and diligently discharge his duties hereunder and use his best efforts to
implement the policies established by the Company. The Executive shall report
to
the Chief Executive Officer of the Company.
2. Time.
The
Executive shall devote substantially all of his professional time to the
business affairs of the Company.
3. Term.
The
Executive’s engagement shall commence effective the date hereof and shall
continue for three (3) years (the “Term”) unless otherwise terminated as
provided herein.
4. Compensation.
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(a)
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Base
Salary.
Executive's base salary for the first year of the Term will be at
a rate
of not less than $350,000 per annum and Executive’s base salary for the
second year of the Term will be at a rate of not less than $400,000
per
annum and Executive’s base salary for the third year of the Term will be
at a rate of not less than $400,000 per annum, in each case, paid
in
accordance with the Company's payroll practices and policies then
in
effect, with such increases as determined by the Board of Directors
of the
Company (“Board”) or the Compensation Committee of the Board from time to
time (such salary, as increased from time to time, the “Base
Salary”).
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(b)
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Bonus.
Executive shall be entitled to participate in the Company’s executive
bonus program then in effect. Executive shall be eligible for an
annual
bonus (“Annual Bonus”) of up to 100% of Executive’s Base Salary, to be
superseded by the maximum amount available under the Company’s executive
bonus program and any other bonus program generally applicable to
senior
executives of the Company. In the event that the Annual Bonus payment
for
a calendar year, if any, is based in whole or in part on the results
of
the audit by the Company’s independent public accountants of the Company’s
financial statements for such calendar year, such Annual Bonus shall
be
paid as soon as reasonably practicable following the completion of
such
audit; otherwise such Annual Bonus shall be paid by March 15 of the
calendar year immediately following the calendar year to which it
relates.
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(c)
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Restricted
Stock.
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(i)
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The
Company shall grant to the Executive upon approval by the Board and
stockholders of the Company of the Company’s 2009 Equity Incentive Plan or
a similar plan that covers awards of common stock to the Company’s
officers (the “Plan”) an award (the “Award”) equal to a number of shares
of the Company’s common stock, par value $0.001 per share (“Common
Stock”), with a Fair Market Value (as defined below in this sub-section)
of $750,000, subject to terms and conditions set forth set forth
in the
Restricted Stock Agreement between the Executive and the Company
substantially in the form attached hereto as Exhibit A
(the “Restricted Stock Agreement”) and any Plan pursuant to which the
Award may be issued. The restrictions on the shares covered by the
Award
shall lapse with respect to one-third of such shares on each of the
first
three (3) anniversaries of the date hereof (each a “Stock Vesting Date”),
in accordance with the terms and conditions of the Restricted Stock
Agreement. In the event that stockholder approval of the grant is
obtained
after the passing of a particular Stock Vesting Date, the vesting
of the
shares that would have vested upon the occurrence of that Stock Vesting
Date shall occur immediately upon stockholder approval of the grant
and
the remaining shares shall vest in accordance with the remaining
Stock
Vesting Dates as provided above. The number of shares of Common Stock
to
be issued under the Award shall be determined by dividing $750,000
by the
Fair Market Value. For the purposes of this Section, “Fair Market Value”
means the average of the last
sale
prices reported for a share of Common Stock for
each of the five (5) trading days preceding the date this Agreement
is
signed by the parties, as
reported on the NASDAQ Stock Market.
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(ii)
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Notwithstanding
the foregoing, in the event that stockholder approval of the grant
of the
Award is not obtained prior to the earlier of (i) the expiration of
the Term or (ii) a termination of Executive’s employment prior to the end
of the Term for the reasons set forth in Sections 5(a)(1), (2), (3)
or (6) hereof, then in lieu of the grant of the Award to the Executive,
the Company shall pay to the Executive an amount equal to $750,000
(the
“Alternate Payment”). The Alternate Payment, if any, shall be deemed
earned over a three (3) year period, such that one-third of the Alternate
Payment shall vest on each of the first three (3) anniversaries of
the
date hereof, and the entire amount of the Alternate Payment shall
be paid
within thirty (30) days of the date of expiration or termination
of the
Executive’s employment hereunder as set forth
above.
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(iii)
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In
the event of a Change in Control (as hereinafter defined in
Section 5(d)(iii) below), any remaining restrictions relating to any
portion of the Award granted to the Executive that has not vested
shall
immediately lapse, notwithstanding any provision to the contrary
contained
in the Plan or Restricted Stock Agreement, or if the Award has not
theretofore been granted, the Executive shall be paid the Alternate
Payment.
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(d)
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Fringe
Benefits.
Executive shall receive the fringe benefits generally given to other
executive officers of the Company including, but not limited to,
major
medical, dental, life insurance, and pension including any 401(k)
or other
profit sharing plan. Executive shall also be added or continued,
as the
case may be, as an insured under the Company's officers and directors
insurance and all other polices which pertain to officers of the
Company.
The Company shall pay Executive a car allowance of $1,500 per month
during
the Term of this Agreement.
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(e)
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Reimbursement
of Expenses.
The Company shall pay to Executive the reasonable expenses incurred
by him
in the performance of his duties hereunder, including, without limitation,
expenses related to cell phones, blackberrys and laptop computers
and such
other expenses incurred in connection with business related travel
or
entertainment in accordance with the Company’s policy, or, if such
expenses are paid directly by the Executive, the Company shall promptly
reimburse the Executive for such payments, provided that the Executive
(i) properly accounts for such expenses in accordance with the
Company’s policy and (ii) has received prior approval by the Chief
Executive Officer of the Company for major
expenses.
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(f)
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Vacation.
Executive shall be entitled to four weeks of paid vacation per year.
The
Executive shall use his vacation in the calendar year in which it
is
accrued.
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5. Termination
of Employment.
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(a)
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General.
The Executive’s employment under this Agreement may be terminated without
any breach of this Agreement only on the following
circumstances:
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(1) Death.
The
Executive’s employment under this Agreement shall terminate upon his
death.
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(2) Disability.
If the
Executive suffers a Disability (as defined below in this sub-section (2)),
the
Company may terminate the Executive’s employment under this Agreement upon
thirty (30) days prior written notice; provided that the Executive has not
returned to full time performance of his duties during such thirty (30) day
period. For purposes hereof, “Disability” shall mean the Executive’s inability
to perform his duties and responsibilities hereunder, with or without reasonable
accommodation, due to any physical or mental illness or incapacity, which
condition either (i) has continued for a period of 180 days (including weekends
and holidays) in any consecutive 365-day period, or (ii) is projected by the
Board in good faith after consulting with a doctor selected by the Company
and
consented to by the Executive (or, in the event of the Executive’s incapacity,
his legal representative), such consent not to be unreasonably withheld, that
the condition is likely to continue for a period of at least six (6) consecutive
months from its commencement.
(3) Good
Reason.
The
Executive may terminate his employment under this Agreement for Good Reason
at
any time on or prior to the 120th
day
after the occurrence of any of the Good Reason events set forth in the following
sentence. For purposes of this Agreement, “Good Reason” shall mean the
occurrence of any of the following events without the Executive’s
consent:
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(i)
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the
failure by the Company to timely comply with its material obligations
and
agreements contained in this
Agreement;
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(ii)
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a
material diminution of the authorities, duties or responsibilities
of the
Executive set forth in Section 1 above (other than temporarily while
the
Executive is physically or mentally incapacitated and unable to properly
perform such duties, as determined by the Board in good
faith);
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(iii)
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the
loss of the titles of the Executive with the Company set forth in
Section
1 above;
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(iv)
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the
re-location of the Executive to an office outside of New York, New
York
(the borough of Manhattan);
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(v)
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the
assignment to the Executive of duties or responsibilities which represent
a material diminution of his duties and responsibilities set forth
in
Section 1 above; or
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(vi)
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a
change in the reporting structure so that the Executive reports to
someone
other than the Chief Executive
Officer.
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provided,
however,
that,
within ninety (90) days of any such events having occurred, the Executive shall
have provided the Company with written notice that such events have occurred
and
afforded the Company thirty (30) days to cure same. The parties agree that
a
termination for Good Reason shall be treated as an involuntary separation under
Code Section 409A (as hereinafter defined in Section 9(a) below);
provided,
however,
that in
the event it is finally determined that any taxes are due and payable in
connection with the receipt of such consideration by the Executive, then the
Executive agrees to pay any taxes, penalties and interest that may arise in
connection therewith, and shall indemnify and hold harmless the Company from
any
taxes, penalties and interest that result therefrom.
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(4) Without
Good Reason.
The
Executive may voluntarily terminate his employment under this Agreement without
Good Reason upon written notice by the Executive to the Company at least sixty
(60) days prior to the effective date of such termination (which termination
the
Company may, in its sole discretion, make effective earlier than the date set
forth in the Notice of Termination (as hereinafter defined in sub-section (b)
below)).
(5) Cause.
The
Company may terminate the Executive’s employment under this Agreement at any
time for Cause. Termination for “Cause” shall mean termination of the
Executive’s employment because of the occurrence of any of the following as
determined by the Board:
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(i)
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the
willful and continued failure by the Executive to attempt in good
faith to
substantially perform his obligations under this Agreement (other
than any
such failure resulting from the Executive’s incapacity due to a
Disability); provided,
however,
that the Company shall have provided the Executive with written notice
that such actions are occurring and the Executive has been afforded
at
least thirty (30) days to cure
same;
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(ii)
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the
indictment of the Executive for, or his conviction of or plea of
guilty or
nolo
contendere to,
a felony or any other crime involving moral turpitude or
dishonesty;
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(iii)
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the
Executive’s willfully engaging in misconduct in the performance of his
duties for the Company (including theft, fraud, embezzlement, and
securities law violations or a violation of the Company’s Code of Conduct
or other written policies) that is injurious to the Company, monetarily
or
otherwise; or
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(iv)
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the
Executive’s willfully engaging in misconduct other than in the performance
of his duties for the Company (including theft, fraud, embezzlement,
and
securities law violations) that is materially injurious to the Company
or,
in the good faith determination of the Board, is potentially materially
injurious to the Company, monetarily or
otherwise.
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For
purposes of this Section 5(a)(5), no act, or failure to act, on the part of
the
Executive shall be considered “willful,” unless done, or omitted to be done, by
him in bad faith and without reasonable belief that his action or omission
was
in, or not opposed to, the best interest of the Company (including
reputationally).
(6) Without
Cause.
The
Company may terminate the Executive’s employment under this Agreement without
Cause immediately upon written notice by the Company to the
Executive.
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(b)
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Notice
of Termination.
Any termination of the Executive’s employment by the Company or by the
Executive (other than termination by reason of the Executive’s death)
shall be communicated by written Notice of Termination to the other
party
of this Agreement. For purposes of this Agreement, a “Notice of
Termination” shall mean a written notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set
forth in
reasonable detail the facts and circumstances claimed to provide
a basis
for termination of the Executive’s employment under the provision so
indicated.
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(c)
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Date
of Termination.
The “Date of Termination” shall mean (a) if the Executive’s
employment is terminated by his death, the date of his death, (b) if
the Executive’s employment is terminated pursuant to subsection 5(a)(2)
above, thirty (30) days after Notice of Termination is given (provided
that the Executive shall not have returned to the performance of
his
duties on a full-time basis during such thirty (30) day period),
(c) if the Executive’s employment is terminated pursuant to
subsections 5(a)(3) or 5(a)(5) above, the date specified in the Notice
of
Termination after the expiration of any applicable cure periods,
(d) if
the Executive’s employment is terminated pursuant to subsection 5(a)(4)
above, the date specified in the Notice of Termination which shall
be at
least sixty (60) days after Notice of Termination is given, or such
earlier date as the Company shall determine, in its sole discretion,
and
(e) if the Executive’s employment is terminated pursuant to
subsection 5(a)(6), the date on which a Notice of Termination is
given.
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(d)
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Compensation
Upon Termination.
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(i)
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Termination
for Cause or without Good Reason.
If the Executive’s employment shall be terminated by the Company for Cause
or by the Executive without Good Reason, the Executive shall receive
from
the Company: (a) any earned but unpaid Base Salary through the Date
of
Termination, paid in accordance with the Company’s standard payroll
practices; (b) reimbursement for any unreimbursed expenses properly
incurred and paid in accordance with Section 4(e) through the Date
of
Termination; (c) payment for any accrued but unused vacation time
in
accordance with Company policy; (d) such vested accrued benefits,
and
other payments, if any, as to which the Executive (and his eligible
dependents) may be entitled under, and in accordance with the terms
and
conditions of, the employee benefit arrangements, plans and programs
of
the Company as of the Date of Termination, other than any severance
pay
plan ((a) though (d), the “Amounts and Benefits”), and (e) all vested
shares in respect of the Award or, if the Award has not theretofore
been
granted, the vested portion of the Alternate Payment, and the Company
shall have no further obligation with respect to this Agreement other
than
as provided in Section 8 of this Agreement. In addition, any portion
of
the Award or Alternate Payment, as the case may be, that remains
unvested
on the Date of Termination shall be forfeited as of the Date of
Termination.
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(ii)
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Termination
without Cause or for Good Reason.
If, prior to the expiration of the Term, the Executive resigns from
his
employment hereunder for Good Reason or the Company terminates the
Executive’s employment hereunder without Cause (other than a termination
by reason of death or Disability), and the Executive has not received
and
is not entitled to any payment under Section 5(d)(iii) hereof, then
the
Company shall pay or provide the Executive the Amounts and Benefits
and, subject
to Section 9 hereof:
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1.
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an
amount equal to the sum of all applicable Base Salary for the balance
of
the Term determined as if such termination had not occurred, which
shall
be payable in full in a lump sum cash payment to be made to the Executive
within thirty (30) days of the Date of Termination;
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2.
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any
Annual Bonus earned but unpaid for a prior year (the “Prior Year Bonus”),
which shall be payable in full in a lump sum cash payment to be made
to
the Executive within thirty (30) days of the Date of
Termination;
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3.
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in
the event such resignation or termination occurs following the Company’s
first fiscal quarter of any year, a pro-rata portion of the Executive’s
Annual Bonus for the fiscal year in which the Executive’s termination
occurs based on actual results for such year (determined by multiplying
the amount of such Annual Bonus which would be due for the full fiscal
year by a fraction, the numerator of which is the number of days
during
the fiscal year of termination that the Executive is employed by
the
Company and the denominator of which is 365), paid in accordance
with
Section 4(b) (“Pro Rata Bonus”). In the event that the Company has
not established an executive bonus plan covering the year of the
Term
during which the Executive was terminated the pro-rata portion of
the
bonus due to the Executive shall be based upon the prior year’s Annual
Bonus received by the Executive;
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4.
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subject
to the Executive’s (a) timely election of continuation coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”), with respect to the Company’s group health insurance plans in
which the Executive participated immediately prior to the Date of
Termination (“COBRA Continuation Coverage”), and (b) continued payment by
Executive of premiums for such plans at the “active employee” rate
(excluding, for purposes of calculating cost, an employee’s ability to pay
premiums with pre-tax dollars), the Company shall provide COBRA
Continuation Coverage for the Executive and his eligible dependents
until
the earliest of (x) the Executive or his eligible dependents, as
the case
may be, ceasing to be eligible under COBRA, (y) eighteen (18) months
following the Date of Termination, and (z) the Executive becoming
eligible
for coverage under the health insurance plan of a subsequent employer
(the benefits provided under this sub-section (4), the “Medical
Continuation Benefits”); and
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5.
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in
the event a Change in Control shall not have theretofore occurred,
all
remaining restrictions relating to any portion of the Award granted
to the
Executive that has not vested shall immediately lapse, notwithstanding
any
provisions to the contrary contained in the Plan or Restricted Stock
Agreement, or if the Award has not theretofore been granted, the
Executive
shall be paid the Alternate
Payment.
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(iii)
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Termination
Following Change in Control.
If the Company terminates Executive’s employment without Cause or
Executive terminates Executive’s employment for Good Reason within 12
months after a Change in Control, then the Company shall pay to Executive,
in a lump sum, in cash, within 15 days after the date of Executive’s
termination, an amount equal to $100 less than three times the Executive’s
“annualized includable compensation for the base period” (as defined in
Section 280G of the Internal Revenue Code of 1986 (the “Code”)); provided,
however, that if such lump sum severance payment, either alone or
together
with other payments or benefits, either cash or non-cash, that the
Executive has the right to receive from the Company, including, but
not
limited to, accelerated vesting or payment of any deferred compensation,
options, stock appreciation rights or any benefits payable to Executive
under any plan for the benefit of employees, which would constitute
an
“excess parachute payment” (as defined in Section 280G of the Code), then
such lump sum severance payment or other benefit shall be reduced
to the
largest amount that will not result in receipt by the Executive of
an
excess parachute payment. In addition to the foregoing, upon a termination
of Executive’s employment as set forth above, Executive shall be entitled
to receive the payments in the amounts contemplated, and on the dates
specified, by sub-section 5(d)(ii)(1),(2), (3) and
(4).
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For
purposes of this Agreement, a “Change in Control” shall mean any of the
following:
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1.
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any
consolidation or merger of the Company in which the Company is not
the
continuing or surviving corporation or pursuant to which shares of
the
Company’s Common Stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders
of the
Company Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock of the surviving corporation
immediately after the merger;
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2.
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any
sale, lease, exchange or other transfer (in one transaction or a
series of
related transactions) of all or substantially all of the assets of
the
Company;
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3.
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any
approval by the stockholders of the Company of any plan or proposal
for
the liquidation or dissolution of the Company;
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4.
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the
cessation of control (by virtue of their not constituting a majority
of
directors) of the Board by the individuals (the “Continuing Directors”)
who (x) at the date of this Agreement were directors or (y) become
directors after the date of this Agreement and whose election or
nomination for election by the Company’s stockholders, was approved by a
vote of at least two-thirds of the directors then in office who were
directors at the date of this Agreement or whose election or nomination
for election was previously so approved);
or
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5.
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(A)
the acquisition of beneficial ownership (“Beneficial Ownership”), within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934,
as
amended (the “Exchange Act”), of an aggregate of 25% or more of the voting
power of the Company’s outstanding voting securities by any person or
group (as such term is used in Rule 13d-5 under the Exchange Act)
who
beneficially owned less than 10% of the voting power of the Company’s
outstanding voting securities on the effective date of this Agreement,
(B) the acquisition of Beneficial Ownership of an additional 15% of
the voting power of the Company’s outstanding voting securities by any
person or group who beneficially owned at least 10% of the voting
power of
the Company’s outstanding voting securities on the effective date of this
Agreement, or (C) the execution by the Company and a stockholder of a
contract that by its terms grants such stockholder (in its, hers
or his
capacity as a stockholder) or such stockholder’s Affiliate
(as defined in Rule 405 promulgated under the Securities Act of 1933
(an “Affiliate”)) including, without limitation, such stockholder’s
nominee to the Board (in its, hers or his capacity as an Affiliate
of such
stockholders), the right to veto or block decisions or actions of
the
Board provided,
however,
that notwithstanding the foregoing, the events described in items
(A), (B)
or (C) above shall not constitute a Change in Control hereunder if
the
acquiror is (aa) a trustee or other fiduciary holding securities
under an
employee benefit plan of the Company or one of its affiliated entities
and
acting in such capacity, (bb) a corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same proportions
as their ownership of voting securities of the Company or (cc) a
person or
group meeting the requirements of clauses (i) and (ii) of Rule 13d-1(b)(1)
under the Exchange Act;
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6.
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subject
to applicable law, in a Chapter 11 bankruptcy proceeding, the appointment
of a trustee or the conversion of a case involving the Company to
a case
under Chapter 7.
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(iv)
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Termination
upon Death.
In the event of the Executive’s death, the Company shall pay or provide to
the Executive’s estate: (i) the Amounts and Benefits, (ii) the Prior Year
Bonus, and (iii) the Pro Rata Bonus. In
addition,
in
the event a Change in Control shall not have theretofore occurred,
one
hundred percent (100%) of the then remaining unvested Award, if any,
shall
immediately become vested on the Date of Termination
and all such amounts and the shares covered by the Award shall be
distributed to the Executive’s estate within thirty (30) days of the Date
of Termination or in the event the Award has not been made because
stockholder approval of the grant of the Award has not occurred the
estate
shall be paid the Alternate Payment.
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(v)
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Termination
upon Disability.
In the event the Company terminates the Executive’s employment hereunder
for reason of Disability, the Company shall pay or provide to the
Executive: (i) the Amounts and Benefits, (ii) the Prior Year Bonus,
(iii)
a Pro Rata Bonus
and (v) the Medical Continuation Benefits. In
addition, in
the event a Change in Control shall not have theretofore occurred,
one
hundred percent (100%) of the then remaining unvested Award, if any,
shall
immediately become vested on the Date of Termination and all such
amounts
and the shares covered by the Award shall be distributed to the Executive
within thirty (30) days of the Date of Termination or in the event
the
Award has not been made because stockholder approval of the grant
of the
Award has not occurred the Executive shall be paid the Alternate
Payment.
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(vi)
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Payments
of Compensation Upon Termination.
For the avoidance of doubt, in the event the Executive shall be entitled
to receive payments and benefits pursuant to any one of
sub-sections 5(d)(i), (ii), (iii), (iv) or (v) above, he shall be
entitled to no payments or benefits under any other of such sub-sections,
except as expressly set forth in sub-section 5(d)(iii) with respect
to
payments and benefits contemplated by sub-section 5(d)(ii).
Notwithstanding any provision to the contrary contained in this Section
5(d), if any bonus amount is based in whole or in part on the results
of
the audit by the Company’s independent public accountants of the Company’s
financial statements for a calendar year, and such amount cannot
be paid
within the applicable thirty (30) day period provided for herein,
then
such amount shall be paid by the later of March 15 of the calendar
year
immediately following the calendar year to which it relates or the
end of
the applicable thirty (30) day
period.
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(e)
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No
Duty to Mitigate.
The Executive shall not be required to mitigate the amount of any
payment
provided for in this Section 5 by seeking other employment or otherwise,
nor shall the amount of any payment provided for in this Section
5 be
reduced by any compensation earned by Executive as the result of
Executive’s employment by another employer or business or by profits
earned by Executive from any other source at any time before and
after the
Executive’s date of
termination.
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6. Confidentiality.
The Executive
shall not divulge to anyone, either during or at any time after the Term, any
information constituting a trade secret or other confidential information
acquired by him concerning the Company, any subsidiary or other affiliate of
the
Company, except in the performance of his duties hereunder, including but not
limited to its licensees, revenues, business systems and processes
(“Confidential Information”). The Executive acknowledges that any Confidential
Information is of great value to the Company, and upon the termination of his
employment, the Executive shall redeliver to the Company all Confidential
Information and other related data in his possession.
7. Noncompetition;
Nonsolicitation.
(1) The
Executive hereby agrees that during the period commencing on the date hereof
and
ending November 10, 2010 (the “Non-Compete Term”), he shall not, directly or
indirectly, in any location in which the Company, its subsidiaries or affiliates
or a licensee thereof operates or sells its products (the “Territory”), engage,
have an interest in or render any services to any business (whether as owner,
manager, operator, licensor, licensee, lender, partner, stockholder, joint
venturer, employee, consultant or otherwise) competitive with the business
activities conducted by the Company, its subsidiaries or affiliates, or the
business activities that the Company, its subsidiaries or affiliates, have
plans
to conduct, during the time of Executive’s employment by the Company, or at the
termination of his employment. Notwithstanding the foregoing, nothing herein
shall prevent the Executive from owning stock in a publicly traded corporation
whose activities compete with those of the Company, its subsidiaries and
affiliates, provided that such stock holdings are not greater than five percent
(5%) of such corporation.
(2) The
Executive shall not, during the period commencing on the date hereof and ending
on November 10, 2011, directly or indirectly, take any action which constitutes
an interference with or a disruption of any of the Company’s business activities
including, without limitation, the solicitation of the Company’s or any
subsidiary’s customers, suppliers, lessors, lessees, licensors, or licensees, or
persons listed on the personnel lists of the Company or any
subsidiary.
(3) For
purposes of clarification, but not of limitation, the Executive hereby
acknowledges and agrees that he shall be prohibited from, during the period
commencing on the date hereof and ending on November 10, 2011, directly or
indirectly, hiring, offering to hire, enticing, soliciting or in any other
manner persuading or attempting to persuade any officer, employee, agent,
supplier, lessor, lessee, licensor, licensee or customer of the Company or
any
subsidiary (but only those suppliers existing during the time of the Executive’s
employment by the Company or any subsidiary, or at the termination of his
employment), to discontinue or alter his, her or its relationship with the
Company or any subsidiary.
(4) Without
intending to limit the remedies available to the Company, the Executive
acknowledges that a breach of any of the covenants contained in this Section
7
may result in material and irreparable injury to the Company, or its affiliates
or subsidiaries, for which there is no adequate remedy at law, that it will
not
be possible to measure damages for such injuries precisely and that, in the
event of such a breach or threat the Company shall be entitled to seek a
temporary restraining order and/or a preliminary or permanent injunction
restraining the Executive from engaging in activities prohibited by this Section
7 or such other relief as may be required specifically to enforce any of the
covenants in this Section 7. If for any reason it is held that the restrictions
under this Section 7 are not reasonable or that consideration therefor is
inadequate, such restrictions shall be interpreted or modified to include as
much of the duration and scope identified in this Section 7 as will render
such
restrictions valid and enforceable.
11
8. Indemnification.
The
Company shall indemnify and hold harmless the Executive against any and all
expenses reasonably incurred by him in connection with or arising out of (a)
the
defense of any action, suit or proceeding in which he is a party, or (b) any
claim asserted or threatened against him, in either case by reason of or
relating to his being or having been an employee, officer or director of the
Company, whether or not he continues to be such an employee, officer or director
at the time of incurring such expenses, except insofar as such indemnification
is prohibited by law. Such expenses shall include, without limitation, the
fees
and disbursements of attorneys, amounts of judgments and amounts of any
settlements, provided that such expenses are agreed to in advance by the
Company. The foregoing indemnification obligation is independent of any similar
obligation provided in the Company’s Certificate of Incorporation or Bylaws, and
shall apply with respect to any matters attributable to periods prior to the
date of this Agreement, and to matters attributable to Executive's employment
hereunder, without regard to when asserted.
9. Section
409A of the Code.
|
(a)
|
It
is intended that the provisions of this Agreement comply with Section
409A
of Code and the regulations and guidance promulgated thereunder
(collectively “Code Section 409A”), and all provisions of this Agreement
shall be construed in a manner consistent with the requirements for
avoiding taxes or penalties under Code Section 409A. If any provision
of
this Agreement (or of any award of compensation, including equity
compensation or benefits) would cause the Executive to incur any
additional tax or interest under Code Section 409A, the Company
shall, upon the specific request of the Executive, use its reasonable
business efforts to in good faith reform such provision to comply
with
Code Section 409A; provided,
that to the maximum extent practicable, the original intent and economic
benefit to the Executive and the Company of the applicable provision
shall
be maintained, but the Company shall have no obligation to make any
changes that could create any additional economic cost or loss of
benefit
to the Company. The Company shall timely use its reasonable business
efforts to amend any plan or program in which the Executive participates
to bring it in compliance with Code Section 409A. Notwithstanding
the
foregoing, the Company shall have no liability with regard to any
failure
to comply with Code Section 409A so long as it has acted in good
faith
with regard to compliance
therewith.
|
12
|
(b)
|
A
termination of employment shall not be deemed to have occurred for
purposes of any provision of this Agreement providing for the payment
of
any amounts or benefits upon or following a termination of employment
unless such termination is also a “Separation from Service” within the
meaning of Section 409A and, for purposes of any such provision of
this
Agreement, references to a “resignation,” “termination,” “termination of
employment” or like terms shall mean Separation from Service. If the
Executive is deemed on the date of termination of his employment
to be a
“specified employee”, within the meaning of that term under Section
409A(a)(2)(B) of the Code and using the identification methodology
selected by the Company from time to time, or if none, the default
methodology, then with regard to any payment, the providing of any
benefit
or any distribution of equity made subject to this Section to the
extent
required to be delayed in compliance with Section 409A(a)(2)(B) of
the
Code, and any other payment, the provision of any other benefit or
any
other distribution of equity that is required to be delayed in compliance
with Section 409A(a)(2)(B) of the Code, such payment, benefit or
distribution shall not be made or provided prior to the earlier of
(i) the
expiration of the six-month period measured from the date of the
Executive’s Separation from Service or (ii) the date of the Executive’s
death. On the first day of the seventh month following the date of
Executive’s Separation from Service or, if earlier, on the date of his
death, (x) all payments delayed pursuant to this Section (whether
they
would have otherwise been payable in a single sum or in installments
in
the absence of such delay) shall be paid or reimbursed to the Executive
in
a lump sum, and any remaining payments and benefits due under this
Agreement shall be paid or provided in accordance with the normal
payment
dates specified for them herein
and (y) all distributions of equity delayed pursuant to this Section
9
shall be made to the Executive. In addition to the foregoing, to
the
extent required by Section 409A(a)(2)(B) of the Code, prior to the
occurrence of a Disability termination as provided in this Agreement,
the
payment of any compensation to the Executive under this Agreement
shall be
suspended for a period of six months commencing at such time that
the
Executive shall be deemed to have had a Separation from Service because
either (A) a sick leave ceases to be a bona fide sick leave of absence,
or
(B) the permitted time period for a sick leave of absence expires
(an “SFS
Disability”), without regard to whether such SFS Disability actually
results in a Disability termination. Promptly following the expiration
of
such six-month period, all compensation suspended pursuant to the
foregoing sentence (whether it would have otherwise been payable
in a
single sum or in installments in the absence of such suspension)
shall be
paid or reimbursed to the Executive in a lump sum. On any delayed
payment
date under this Section there shall be paid to the Executive or,
if the
Executive has died, to his estate, in a single cash lump sum together
with
the payment of such delayed payment, interest on the aggregate amount
of
such delayed payment at the Delayed Payment Interest Rate (as hereinafter
defined in this sub-section (b) below) computed from the date on
which such delayed payment otherwise would have been made to the
Executive
until the date paid. For purposes of the foregoing, the “Delayed Payment
Interest Rate” shall mean the short term applicable
federal
rate
provided for in Section 1274(d) of the Code as of the business day
immediately preceding the payment date for the applicable delayed
payment.
|
13
|
(c)
|
With
regard to any provision herein that provides for reimbursement of
costs
and expenses or in-kind benefits, except as permitted by Code Section
409A, (i) the right to reimbursement or in-kind benefits shall not be
subject to liquidation or exchange for another benefit, (ii) the
amount of expenses eligible for reimbursement, or in-kind benefits,
provided during any taxable year shall not affect the expenses eligible
for reimbursement, or in-kind benefits to be provided, in any other
taxable year, provided
that the foregoing clause (ii) shall not be violated with regard to
expenses reimbursed under any arrangement covered by Section 105(b)
of the Code solely because such expenses are subject to a limit related
to
the period the arrangement is in effect and (iii) such payments shall
be
made on or before the last day of the Executive’s taxable year following
the taxable year in which the expense was
incurred.
|
10. Miscellaneous.
|
(a)
|
This
Agreement shall be deemed to be a contract made under the laws of
the
State of New York and for all purposes shall be construed in accordance
with those laws. The Company and Executive unconditionally consent
to
submit to the exclusive jurisdiction of the New York State Supreme
Court,
County of New York or the United States District Court for the Southern
District of New York for any actions, suits or proceedings arising
out of
or relating to this Agreement and the transactions contemplated hereby
(and agree not to commence any action, suit or proceeding relating
thereto
except in such courts), and further agree that service of any process,
summons, notice or document by registered mail to the address set
forth
below shall be effective service of process for any action, suit
or
proceeding brought against the Company or the Executive, as the case
may
be, in any such court.
|
|
(b)
|
Executive
may not delegate his duties or assign his rights hereunder. No rights
or
obligations of the Company under this Agreement may be assigned or
transferred by the Company other than pursuant to a merger or
consolidation in which the Company is not the continuing entity,
or a
sale, liquidation or other disposition of all or substantially all
of the
assets of the Company, provided that the assignee or transferee is
the
successor to all or substantially all of the assets or businesses
of the
Company and assumes the liabilities, obligations and duties of the
Company
under this Agreement, either contractually or by operation of law.
For the
purposes of this Agreement, the term “Company” shall include the Company
and, subject to the foregoing, any of its successors and assigns.
This
Agreement shall inure to the benefit of, and be binding upon, the
parties
hereto and their respective heirs, legal representatives, successors
and
permitted assigns.
|
|
(c)
|
The
invalidity or unenforceability of any provision hereof shall not
in any
way affect the validity or enforceability of any other provision.
This
Agreement reflects the entire understanding between the
parties.
|
|
(d)
|
This
Agreement supersedes the Prior Agreement and any and all other
agreements,
either oral or in writing, between the parties hereto with respect
to the
employment of the Executive by the Company and contains all of
the
covenants and agreements between the parties with respect to such
employment in any manner whatsoever. Any modification or termination
of
this Agreement will be effective only if it is in writing signed
by the
party to be charged.
|
14
|
(e)
|
This
Agreement may be executed by the parties in one or more counterparts,
each
of which shall be deemed to be an original but all of which taken
together
shall constitute one and the same agreement, and shall become effective
when one or more counterparts has been signed by each of the parties
hereto and delivered to each of the other parties
hereto.
|
To
the
Company:
0000
Xxxxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx Xxxx, Chief Executive Officer
With
a
copy in the same manner to:
Blank
Rome LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxx, Esq.
To
the
Executive:
Xxxxxx
Xxxxxx
00
Xxxx
00xx
Xxxxxx,
Xxx 00-X
Xxx
Xxxx,
Xxx Xxxx 00000
-Signature
page follows-
15
IN
WITNESS WHEREOF, the parties hereto have executed this agreement as of the
11
day of November, 2008.
| Iconix Brand Group, Inc. |
Executive
|
||
| By: |
/s/
Xxxx Xxxx
|
/s/
Xxxxxx Xxxxxx
|
|
|
Xxxx
Xxxx
|
Xxxxxx
Xxxxxx
|
||
|
Chief
Executive Officer
|
|||
16
EXHIBIT
A
RESTRICTED
STOCK AGREEMENT
To:
Date
of
Award:1
________
In
accordance with, and subject to, the terms of the employment agreement dated
as
of _______, 2008 between Iconix Brand Group, Inc., a Delaware corporation (the
“Company”), and you (the “Employment Agreement”), you are hereby awarded,
effective as of the date hereof (the “Award Date”), ____ shares (the “Shares”)
of common stock, $.001 par value (“Common Stock”), of the Company, pursuant to
the Company’s 200[9] Equity Incentive Plan or a similar plan that covers awards
of Common Stock to the Company’s officers (the
“Plan”), subject to certain restrictions specified below in Restrictions and
Forfeiture.
(While
subject to the Restrictions, this Agreement refers to the Shares as “Restricted
Shares”.)
Capitalized terms used herein which are defined in the Employment Agreement
shall have the meanings defined therein.
During
the period commencing on the Award Date and terminating on ______, 2011 (the
“Restricted Period”), except as otherwise provided herein, the Shares may not be
sold, assigned, transferred, pledged, or otherwise encumbered and are subject
to
forfeiture (the “Restrictions”).
Except
as
set forth below, the Restricted Period with respect to the Shares will lapse
in
accordance with the vesting schedule set forth below (the “Vesting Schedule”).
Subject to the restrictions set forth in the Plan, the Administrator (as defined
in the Plan) 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
subject thereto, or to remove any or all of such Restrictions, whenever the
Administrator 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.
In
addition to the terms, conditions, and restrictions set forth in the Plan,
the
following terms, conditions, and restrictions apply to the Restricted
Shares:
|
Restrictions
and Forfeiture
|
You
may not sell, assign, pledge, encumber, or otherwise transfer any
interest
in the Restricted Shares until the dates set forth in the Vesting
Schedule, at which point the Restricted Shares will be referred to
as
“
Vested.”
If
your employment is terminated by the Company for Cause or by you
without
Good Reason, your unvested Restricted Shares will be
forfeited.
|
1 To
be
executed (and dated) on the date of stockholder approval of grant of the award
contemplated hereby.
1
|
Vesting
Schedule
|
Assuming
you provide Continuous Service (as defined herein) as an Employee
(as
defined in the Plan) of the Company or an Affiliate (as defined in
the
Plan) of the Company, all Restrictions will lapse on the Restricted
Shares
on the Vesting Date or Vesting Dates set forth in the schedule below
for
the applicable grant of Restricted Shares and they will become
Vested.
|
|
Vesting
Date
|
Number
of Restricted Shares that Vest
|
|
|
33
1/3% of Restricted Shares
|
||
|
Later
of: (i) second anniversary of date of Employment Agreement or (ii)
Approval Date
|
33
1/3% of Restricted Shares
|
|
|
Third
anniversary of date of Employment Agreement (if stockholder approval
of
award is obtained)
|
33
1/3% of Restricted Shares
|
|
Acceleration
of Vesting Upon Death, Disability, Termination without Cause or for
Good
Reason, or Change in Control
|
|
In
the event of your death or Disability or termination of your employment
by
the Company without Cause or by you for Good Reason, or a Change
in
Control, all of the Restricted Shares shall thereupon become fully
vested.
|
|
Continuous
Service
|
|
“Continuous
Service,” as used herein, means the absence of any interruption or
termination of your service as an Employee (as defined in the Plan)
of the
Company or any Affiliate. If you are employed by an Affiliate of
the
Company, your employment shall be deemed to have terminated on the
date
your employer ceases to be an Affiliate of the Company, unless you
are on
that date transferred to the Company or another Affiliate of the
Company.
Service shall not be considered interrupted in the case of sick leave,
military leave or any other leave of absence approved by the Company
or
any then Affiliate of the Company. Your employment shall not be deemed
to
have terminated if you are transferred from the Company to an Affiliate
of
the Company, or vice versa, or from one Company Affiliate to another
Company Affiliate.
|
|
Share
Certificates
|
|
The
Company will, at its option either (i) delay the issuance of certificates
representing the Shares (or portion thereof) until the Shares become
Vested or (ii) will cause the Shares to be issued in book-entry form
or
will issue a certificate (or certificates) in your name with respect
to
the Shares, and will hold any such certificate (or certificates)
on
deposit for your account or cause the book-entry not to be credited
as
free from restrictions on your account until the expiration of the
Restricted Period with respect to the Shares represented thereby.
Any such
certificate (or certificates) issued prior to the end of the Restricted
Period will contain substantially the following legend:
“The
transferability of this certificate and the shares of stock represented
hereby are subject to the terms and conditions (including forfeiture
and
restrictions on voting) contained in the 2009 Equity Incentive Plan
of the
Company or a similar plan that covers awards of Common Stock to the
Company’s officers, and a Restricted Stock Agreement, copies of which are
on file in the office of the Secretary of the
Company.
|
2
|
Additional
Conditions to Issuance of Stock Certificates
|
|
You
will not receive the certificates representing the Restricted
Shares:
(a)
During any period of time in which the Company deems that the issuance
of
the Shares may violate a federal, state, local, or foreign law, rule
or
regulation, or any applicable securities exchange or listing rule
or
agreement, or may cause the Company to be legally obligated to issue
or
sell more shares than the Company is legally entitled to issue or
sell;
or
(b)
Until you have paid or made suitable arrangements to pay (i) all
federal,
state, local and foreign tax withholding required by the Company
in
connection with the issuance or the vesting of the Shares and (ii)
the
employee’s portion of other federal, state, local and foreign payroll and
other taxes due in connection with the issuance or the vesting of
the
Shares.
|
|
Cash
Dividends
|
|
Cash
dividends, if any, paid on the Restricted Shares shall be held by
the
Company for your account and paid to you upon the expiration of the
Restricted Period, except as otherwise determined by the Administrator.
All such withheld dividends shall not earn interest, except as otherwise
determined by the Administrator.
You will not receive withheld cash dividends on any Restricted Shares
which are forfeited and all such cash dividends shall be forfeited
along
with the Restricted Shares which are
forfeited.
|
|
Voting
Rights
|
Prior
to vesting, you will have no voting rights with respect to any Restricted
Shares that have not Vested.
|
|
|
Tax
Withholding
|
|
Unless
you make an election under Section 83(b) of the Internal Revenue
Code of
1986, as amended (the “Code”), and pay taxes in accordance with that
election, you will be taxed on the Shares as they become Vested and
must
arrange to pay the taxes on this income. If the Administrator so
determines, arrangements for paying the taxes may include your
surrendering Shares that otherwise would be released to you upon
becoming
Vested or your surrendering Shares you already own. The fair market
value
of the Shares you surrender, determined as of the date when taxes
otherwise would have been withheld in cash, will be applied as a
credit
against the withholding taxes.
|
3
|
The
Company shall have the right to withhold from your compensation an
amount
sufficient to fulfill its or its Affiliate’s obligations for any
applicable withholding and employment taxes. Alternatively, the Company
may require you to pay to the Company the amount of any taxes which
the
Company is required to withhold with respect to the Shares, or, in
lieu
thereof, to retain or sell without notice a sufficient number of
Shares to
cover the amount required to be withheld. The Company may withhold
from
any cash dividends paid on the Restricted Shares an amount sufficient
to
cover taxes owed as a result of the dividend payment. The Company’s method
of satisfying its withholding obligations shall be solely in the
discretion of the Administrator, subject to applicable federal, state,
local and foreign laws. The Company shall have a lien and security
interest in the Shares and any accumulated dividends to secure your
obligations hereunder.
|
||
|
Tax
Representations
|
|
You
hereby represent and warrant to the Company as follows:
(a) You
have reviewed with your own tax advisors the federal, state, local
and
foreign tax consequences of this investment and the transactions
contemplated by this Agreement. You are relying solely on such advisors
and not on any statements or representations of the Company or any
of its
Employees or agents.
(b) You
understand that you (and not the Company) shall be responsible for
your
own tax liability that may arise as a result of this investment or
the
transactions contemplated by this Agreement. You understand that
Section
83 of 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 an award hereunder is not otherwise an exempt transaction
for
purposes of Section 16(b) of the Securities Exchange Act of 1934,
as
amended (the “1934 Act”), with respect to officers, directors and 10%
stockholders subject to Section 16 of the 1934 Act, a “restriction” on the
Shares includes for these purposes the period after the award of
the
Shares during which such officers, directors and 10% stockholders
could be
subject to suit under Section 16(b) of the 1934 Act. Alternatively,
you
understand that you may elect to be taxed at the time the Shares
are
awarded 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 Internal Revenue Service within thirty (30) days
from
the date of the award.
YOU
HEREBY ACKNOWLEDGE THAT IT IS YOUR SOLE RESPONSIBILITY AND NOT THE
COMPANY’S TO FILE TIMELY THE ELECTION AVAILABLE TO YOU UNDER SECTION 83(B)
OF THE CODE, EVEN IF YOU REQUEST THAT THE COMPANY OR ITS REPRESENTATIVES
MAKE THIS FILING ON YOUR
BEHALF.
|
4
|
Securities
Law Representations
|
|
The
following two paragraphs shall be applicable if, on the date of issuance
of the Restricted Shares, no registration statement and current prospectus
under the Securities Act of 1933, as amended (the “1933 Act”), covers the
Shares, and shall continue to be applicable for so long as such
registration has not occurred and such current prospectus is not
available:
(a) You
hereby agree, warrant and represent that you will acquire the Shares
to be
issued hereunder for your own account for investment purposes only,
and
not with a view to, or in connection with, any resale or other
distribution of any of such shares, except as hereafter permitted.
You
further agree that you will not at any time make any offer, sale,
transfer, pledge or other disposition of such Shares to be issued
hereunder without an effective registration statement under the 1933
Act,
and under any applicable state securities laws or an opinion of counsel
acceptable to the Company to the effect that the proposed transaction
will
be exempt from such registration. You agree to execute such instruments,
representations, acknowledgments and agreements as the Company may,
in its
sole discretion, deem advisable to avoid any violation of federal,
state,
local or foreign law, rule or regulation, or any securities exchange
rule
or listing agreement.
|
|
|
(b) The
certificates for Shares to be issued to you hereunder shall bear
the
following 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 investment 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
acceptable to the Company that the proposed transaction will be exempt
from such registration.”
|
|
|
Stock
Dividend, Stock Split and Similar Capital Changes
|
|
In
the event of any change in the outstanding shares of the Common Stock
of
the Company by reason of a stock dividend, stock split, combination
of
shares, recapitalization, merger, consolidation, transfer of assets,
reorganization, conversion or what the Administrator deems in its
sole
discretion to be similar circumstances, the number and kind of shares
subject to this Agreement shall be appropriately adjusted in a manner
to
be determined in the sole discretion of the Administrator, whose
decision
shall be final, binding and conclusive in the absence of clear and
convincing evidence of bad faith. Any shares of Common Stock or other
securities received, as a result of the foregoing, by you with respect
to
the Restricted Shares shall be subject to the same restrictions as
the
Restricted Shares, the certificate or other instruments evidencing
such
shares of Common Stock or other securities shall be legended and
deposited
with the Company as provided above with respect to the Restricted
Shares,
and any cash dividends received with respect to such shares of Common
Stock or other securities shall be accumulated as provided above
with
respect to the Restricted Shares.
|
5
|
Non-Transferability
|
|
Prior
to vesting, Restricted Shares are not transferable.
|
|
No
Effect on Employment
|
|
Except
as otherwise provided in the Employment Agreement, nothing herein
shall
modify your status as an at-will employee of the Company or any of
its
Affiliates. Further, nothing herein guarantees you employment for
any
specified period of time. This means that, except as provided in
the
Employment Agreement, either you or the Company or any of its Affiliates
may terminate your employment at any time for any reason, with or
without
cause, or for no reason. You recognize that, for instance, you may
terminate your employment or the Company or any of its Affiliates
may
terminate your employment prior to the date on which your Shares
become
vested.
|
|
No
Effect on Corporate Authority
|
|
You
understand and agree that the existence of this Agreement will not
affect
in any way the right or power of the Company or its stockholders
to make
or authorize any or all adjustments, recapitalizations, reorganizations,
or other changes in the Company’s capital structure or its business, or
any merger or consolidation of the Company, or any issuance of bonds,
debentures, preferred or other stocks with preferences ahead of or
convertible into, or otherwise affecting the common shares or the
rights
thereof, or the dissolution or liquidation of the Company, or any
sale or
transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or
otherwise.
|
|
Arbitration
|
|
Any
dispute or disagreement between you and the Company with respect
to any
portion of this Agreement or its validity, construction, meaning,
performance or your rights hereunder shall, unless the Company in
its sole
discretion determines otherwise, be settled by arbitration, at a
location
designated by the Company, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association or its successor, as
amended
from time to time. However, prior to submission to arbitration you
will
attempt to resolve any disputes or disagreements with the Company
over
this Agreement amicably and informally, in good faith, for a period
not to
exceed two weeks. Thereafter, the dispute or disagreement will be
submitted to arbitration. At any time prior to a decision from the
arbitrator(s) being rendered, you and the Company may resolve the
dispute
by settlement. You and the Company shall equally share the costs
charged
by the American Arbitration Association or its successor, but you
and the
Company shall otherwise be solely responsible for your own respective
counsel fees and expenses. The decision of the arbitrator(s) shall
be made
in writing, setting forth the award, the reasons for the decision
and
award and shall be binding and conclusive on you and the Company.
Further,
neither you nor the Company 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.
|
6
|
Governing
Law
|
|
The
laws of the State of Delaware will govern all matters relating to
this
Agreement, without regard to the principles of conflict of
laws.
|
|
Notices
|
|
Any
notice you give to the Company must be in writing and either
hand-delivered or mailed to the office of the Chief Executive Officer
of
the Company. If mailed, it should be addressed to the Chief Executive
Officer of the Company at its then main headquarters. Any notice
given to
you will be addressed to you at your address as reflected on the
personnel
records of the Company. You and the Company may change the address
for
notice by like notice to the other. Notice will be deemed to have
been
duly delivered when hand-delivered or, if mailed, on the day such
notice
is postmarked.
|
|
Agreement
Subject to Plan; Entire Agreement
|
|
This
Agreement shall be subject to the terms of the Plan in effect on
the date
hereof, which terms are hereby incorporated herein by reference and
made a
part hereof. This Agreement constitutes the entire understanding
between
the Company and you with respect to the subject matter hereof and
no
amendment, supplement or waiver of this Agreement, in whole or in
part,
shall be binding upon the Company unless in writing and signed by
the
President of the Company
|
|
Conflicting
Terms
|
|
Wherever
a conflict may arise between the terms of this Agreement and the
terms of
the Plan in effect on the date hereof, the terms of the Plan will
control.
|
Please
sign the copy of this Restricted Stock Agreement and return it to the Company’s
Secretary, thereby indicating your understanding of and agreement with its
terms
and conditions.
7
ACKNOWLEDGMENT
I
hereby
acknowledge receipt of a copy of the Plan. I hereby represent that I have read
and understood the terms and conditions of the Plan and of the Restricted Stock
Agreement. I hereby signify my understanding of, and my agreement with, the
terms and conditions of the Plan and of the Restricted Stock Agreement. I agree
to accept as binding, conclusive, and final all decisions or interpretations
of
the Administrator concerning any questions arising under the Plan with respect
to this Restricted Stock Agreement. I accept this Restricted Stock Agreement
in
full satisfaction of any previous written or oral promise made to me by the
Company or any of its Affiliates with respect to option or stock
grants.
Date:
____________________
8
