EXHIBIT 4.4(c)
RESTRICTED STOCK GRANT AND REPURCHASE AGREEMENT
This Agreement made this ___ day of _________ (the "Agreement"), by
and between Plymouth Rubber Company, Inc., a Massachusetts corporation
(the "Company"), and _____________ of ______________ ("Employee").
WHEREAS, the Company proposes to sell to Employee ________ shares
(the "Stock") of the Company's Class B Common Stock, $1.00 par value per
share, at a purchase price of $_____ per share (the "Purchase Price"); and
WHEREAS, the Company and Employee wish to restrict the transfer by
Employee of the Stock so acquired by Employee and to give to the Company
certain rights to repurchase the Stock in the event of termination of
Employee's employment with the Company;
NOW, THEREFORE, for valuable consideration, the receipt of which is
hereby acknowledged, the Company and Employee agree as follows:
1. Repurchase Option.
1.1. If Employee's employment with the Company shall hereafter
terminate at any time, for any reason, whether because of any action of
the Company or Employee, the death or disability of Employee or otherwise
(the "Termination"), the Company shall have the option to repurchase (the
"Repurchase Option") the Unvested Shares in accordance with the procedure
set forth in this Section 1. As used in this Agreement, the term
"Termination" shall refer to the date on which termination of Employee's
employment becomes effective. The number of shares of the Stock covered
by the Repurchase Option (the "Unvested Shares") shall equal that number
of shares of the Stock that have not yet vested as of the Termination
according to the following schedule:
1.2. The Company may repurchase each of the Unvested Shares at
a price equal to the Purchase Price.
1.3. In the event of the Employee's Termination, the Company
may send to Employee a written notice, within 60 days after the date of
Termination, specifying the number of Unvested Shares the Company elects
to repurchase pursuant to the Repurchase Option and a date for the
closing under this Section 1.3, which date shall not be more than 30 days
after the date of such notice. The closing shall take place at the
offices of the Company or at such other location as the Company and
Employee shall agree. At the closing, Employee shall transfer to the
Company the number of Unvested Shares specified in the Company's notice,
free of all liens,
encumbrances and rights of others, by delivery of
certificates representing such number of Unvested Shares, duly endorsed
for transfer or accompanied by duly executed stock powers. Upon
completion of such transfer and its receipt of such certificates so
endorsed, the Company shall pay for such Unvested Shares by any of the
following methods: (a) by delivery to Employee of a check in the amount
of the aggregate repurchase price for such Unvested Shares, (b) by
cancellation of indebtedness of Employee to the Company in such amount,
(c) by delivery of the Company's three-year promissory note in such
amount, with interest thereon at the prime rate of interest charged by
[identify money center bank] for short-term loans to its most
creditworthy borrowers, as such rate may be in effect from time to time,
such note to be in such form and to contain such other terms as shall be
satisfactory to the Company, or (d) by any combination of the above
methods. The method or methods of payment for such Unvested Shares shall
be chosen by the Company in its sole discretion.
Upon delivery by the Company of notice of exercise of the
Repurchase Option, the Company's sole obligation with respect to the
Unvested Shares as to which the Repurchase Option is being exercised
shall be to make payment of the repurchase price therefor. The Company
shall not be required thereafter to treat Employee as the owner of such
Unvested Shares, or to accord the right to vote to Employee with respect
thereto or to receive any dividends thereon.
1.4. If, within 60 days after Termination the Company does not
notify Employee that it elects to exercise its Repurchase Option, or if
the Company does not exercise its Repurchase Option as to all of the
Unvested Shares, Employee shall hold the remaining Unvested Shares free
of the Repurchase Option but subject to the other terms of this
Agreement.
2. Prohibited Transfers. Employee shall not sell, assign or transfer,
by gift, operation of law or otherwise, all or any part of the Unvested
Shares now or hereafter owned by Employee; provided, however, that the
Employee may transfer unvested Shares to (i) the Employee's spouse,
children or grandchildren (collectively, the "Immediate Family"); (ii) a
trust solely for the benefit of the Employee or his or her Immediate
Family; or (iii) a partnership or limited liability company whose only
partners or shareholders are one or more of the Employee and his or her
Immediate Family members (each transferee described in clauses (i), (ii)
and (iii) above is hereinafter referred to as a "Permitted Transferee");
provided that Employee gives the Company advance written notice
describing the terms and conditions of the proposed transfer and the
Company notifies the Employee in writing that such a transfer would
comply with the requirements of this Agreement. The terms of this
Agreement shall apply to the Permitted Transferee (including the
Permitted Transferee's beneficiary, executor or administrator) except
that Permitted Transferees shall not be entitled to transfer the Unvested
Shares, other than by will or the laws of descent and distribution.
The Company shall not be required to transfer on its books any
Unvested Shares which have been transferred in violation of this
Agreement, or to treat as owner of such Shares, or to accord the right to
vote as such owner, or to pay dividends to any person or entity to which
such Shares shall have been sold, assigned or otherwise transferred in
violation of this Agreement.
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3. Escrow Arrangement. As security for the faithful performance by
Employee of the terms of this Agreement and to ensure the availability
for delivery of the Unvested Shares upon exercise of the Repurchase
Option, Employee agrees to deliver to and deposit with [ ], as
escrow agent in this transaction (the "Escrow Agent"), concurrently with
the execution hereof, a stock assignment duly endorsed to the Company
(with date and number of shares blank), together with the certificate or
certificates evidencing the Unvested Shares. Said documents are to be
held by the Escrow Agent and delivered by the Escrow Agent pursuant to
the following terms:
3.1. In the event the Company exercises its Repurchase Option,
the Company shall give to the Escrow Agent a written notice specifying
the number of Unvested Shares which it is electing to repurchase and the
time and place of the closing. The Company and Employee irrevocably
authorize and direct the Escrow Agent to complete the transaction
contemplated by such notice in accordance with the terms of said notice.
At the closing, the Escrow Agent shall complete the stock assignment held
in escrow and endorsed by Employee and shall deliver the same, together
with any certificates evidencing the Unvested Shares to be transferred,
to the Company against the simultaneous delivery to the Escrow Agent of
payment to Employee of the aggregate purchase price for the Unvested
Shares which the Company has repurchased. Upon receipt of such payment,
the Escrow Agent shall promptly deliver such payment to Employee.
3.2. Employee irrevocably authorizes the Company to deposit
with the Escrow Agent any certificates evidencing Stock to be held by the
Escrow Agent hereunder and any securities issued in exchange for or in
respect of said Stock. Employee does hereby irrevocably constitute and
appoint the Escrow Agent as his attorney-in-fact and agent for the term
of this escrow to execute with respect to such securities all documents
necessary or appropriate to make such Stock and other securities
negotiable and to complete any transactions herein contemplated. Subject
to the provisions of this Section 3, Employee shall exercise all rights
and privileges of a stockholder of the Company while the Stock is held by
the Escrow Agent.
3.3. This escrow shall terminate upon the earliest to occur of
(i) the expiration of the Repurchase Option pursuant to Section 1.4, or
(ii) full vesting of the Stock pursuant to Section 1.1. If at the time
of such termination the Escrow Agent should have in its possession any
documents, securities or other property belonging to Employee, it shall
deliver all of the same to Employee and shall be discharged of all
further obligations hereunder.
3.4. The Escrow Agent's duties hereunder may be altered,
amended, modified or revoked only by a writing signed by the Company and
Employee.
3.5. The Escrow Agent shall be obligated only for the
performance of such duties as are specifically set forth herein and may
rely and shall be protected in relying or refraining from acting on any
instrument reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties. The Escrow Agent
shall not be personally liable for any act it may do or refrain from
doing hereunder as Escrow Agent or as attorney-in-fact for Employee,
provided that the Escrow Agent acts in good faith and in the exercise of
its own good judgment, and any act which it does or refrains from doing
pursuant to the advice of its own attorneys shall be conclusive evidence
of such good faith.
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3.6. The Escrow Agent is hereby expressly authorized to comply
with and obey orders, judgments or decrees of any court. In case it
obeys or complies with any such order, judgment or decree, it shall not
be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set
aside, vacated or found to have been entered without jurisdiction.
3.7. The Escrow Agent shall be entitled to employ such
independent legal counsel and other experts as it may deem necessary to
advise it in connection with its obligations hereunder, may rely upon the
advice of such counsel, and may pay such counsel reasonable compensation
therefor.
3.8. The Escrow Agent reserves the right, upon notice to
Employee and the Company, to resign from its duties as Escrow Agent.
Upon receipt of such notice, the Company, with the consent of Employee,
which consent shall not be unreasonably withheld, shall appoint a
substitute escrow agent, whose fees and expenses, if any, shall be paid
by the Company.
3.9. If the Escrow Agent reasonably requires other or further
instruments in connection with this Section 3 or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such
instruments.
3.10. It is understood and agreed that should any dispute arise
with respect to the delivery, ownership or right of possession of the
Stock or other securities held by the Escrow Agent hereunder, it is
authorized and directed to retain in its possession without liability to
any one all or any part of said Stock or other securities until such
dispute shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no
appeal has been perfected, but it shall be under no duty whatsoever to
institute or defend any such proceedings.
3.11. All reasonable costs, fees and disbursements incurred by
the Escrow Agent in connection with the performance of its duties
hereunder shall be borne by the Company.
3.12. By signing below, the Escrow Agent becomes a party to this
Agreement only for the purpose of this Section 3.
3.13. Upon receipt of a notice by the Escrow Agent, signed by
the Company and Employee, setting forth such number of shares of Stock to
be released from escrow (all of such Stock to be fully vested), the
Escrow Agent shall deliver to the Company a certificate representing at
least the number of shares of Stock to be released to the Employee. The
Company shall deliver to Employee a certificate for the number of shares
of Stock set forth in such notice and shall deliver to the Escrow Agent a
certificate for the balance of the Shares to be held in escrow.
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4. No Registration. Employee understands that the Stock has not
been registered under the Act or qualified under the securities or "blue
sky laws of any jurisdiction, and the Company is not, nor will it be,
under any obligation to register the Stock under the Act or the "blue
sky" laws of any jurisdiction. Employee further understands that the
Stock will constitute "restricted securities" within the meaning of Rule
144 promulgated under the Act and that, as such, the Stock must be held
indefinitely unless it is subsequently registered under the Act or unless
an exemption from the registration requirements thereof is available.
5. Lock-up Agreement. The provisions of this Agreement are in
addition to any restrictions imposed by any lock-up agreements that may
be required by the underwriters of any public offering registered by the
Company under the Act. Employee hereby agrees to be bound by any such
lock-up agreement and, upon the request of the Company or such
underwriters, to execute and deliver a separate lock-up agreement in such
form as the Company or such underwriters shall request, provided that the
restrictions imposed by any such lock-up agreement shall terminate not
later than 180 days after the closing date of the related public offering.
6. Investment Purposes. Employee is acquiring the Stock for
Employee's own account for investment and not for, with a view to, or in
connection with any resale or distribution thereof.
7. Restrictive Legend. The certificate for the Stock will be
imprinted with legends in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR REGISTERED OR QUALIFIED UNDER
THE SECURITIES OR "BLUE SKY" LAWS OF ANY JURISDICTION. THESE
SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR
QUALIFICATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND
SUCH BLUE SKY LAWS AND AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO THE COMPANY TO SUCH EFFECT.
THE SALE OR OTHER DISPOSITION OF ANY OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY THE TERMS OF
A STOCK RESTRICTION AND REPURCHASE AGREEMENT DATED AS OF
____, (THE "AGREEMENT"). A COPY OF THE AGREEMENT IS
AVAILABLE FOR INSPECTION FROM THE SECRETARY OF THE COMPANY.
8. Adjustments for Stock splits, Stock Dividends, etc.
8.1. If from time to time during the term of this Agreement
there is any stock split-up, stock dividend, stock distribution or other
reclassification of the Common Stock of the Company, any and all new,
substituted or additional securities to which the Employee is entitled by
reason of his ownership of the Unvested Shares shall be immediately
subject to
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the Repurchase Option, the restrictions on transfer and other
provisions of this Agreement in the same manner and to the same extent as
the Unvested Shares and the repurchase price of Section 1.2 shall be
appropriately adjusted.
8.2. If the Unvested Shares are converted into or exchanged
for, or stockholders of the Company receive by reason of any distribution
in total or partial liquidation, securities of another corporation, or
other property (including cash), pursuant to any merger of the Company or
acquisition of its assets, then the rights of the Company under this
Agreement shall inure to the benefit of the Company's successor and this
Agreement shall apply to the securities or other property received upon
such conversion, exchange or distribution in the same manner and to the
same extent as the Unvested Shares.
9. Withholding Taxes.
9.1. If the Company in its discretion determines that it is
obligated to withhold any tax in connection with the transfer of, or the
lapse of restrictions on, the Unvested Shares, the Employee hereby agrees
that the Company may withhold from the Employee's wages or other
remuneration the appropriate amount of tax. At the discretion of the
Company, the amount required to be withheld may be withheld in cash from
such wages or other remuneration. The Employee further agrees that, if
the Company does not withhold an amount from the Employee's wages or
other remuneration sufficient to satisfy the withholding obligation of
the Company, the Employee will make reimbursement on demand, in cash, for
the amount underwithheld.
The Employee acknowledges that he has been informed of the
advisability of making an election in accordance with Section 83(b) of
the Internal Revenue Code of 1986, as amended; that such election must be
filed with the Internal Revenue Service within 30 days of the transfer of
shares to the Employee; and that the Employee is solely responsible for
making such election. The Employee hereby agrees to deliver to the
Company a signed copy of any document he may execute and file with the
Internal Revenue Service evidencing an election under Section 83(b) of
the Internal Revenue Code of 1986, as amended.
10. Sale or Transfer in Violation of this Agreement. The Company
shall not be required to transfer any shares of the Stock on its books
which shall purportedly have been sold, assigned or otherwise transferred
in violation of this Agreement, or to treat as owner of such shares, or
to accord the right to vote as such owner or to pay dividends to, any
person or organization to which any such shares shall purportedly have
been sold, assigned or otherwise transferred in violation of this
Agreement.
11. No Obligation to Employ. Employee understands and agrees that
the ownership of any Stock by Employee shall not impose upon the Company
any obligation to employ or continue to employ Employee.
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12. Severability. If any provision of this Agreement shall be
determined to be invalid, illegal or otherwise unenforceable by any court
of competent jurisdiction, the validity, legality and enforceability of
the other provisions of this Agreement shall not be affected thereby.
Any invalid, illegal or unenforceable provision of this Agreement shall
be severable, and after any such severance, all other provisions hereof
shall remain in full force and effect.
13. Equitable Relief. Employee acknowledges that money damages
alone will not adequately compensate the Company for breach of any of
Employee's covenants and agreements herein and, therefore, agrees that in
the event of the breach or threatened breach of any such covenant or
agreement, in addition to all other remedies available to the Company, at
law, in equity or otherwise, the Company shall be entitled to injunctive
relief compelling specific performance of, or other compliance with, the
terms hereof.
14. Modification or Amendment. This Agreement and the provisions
contained herein may be modified or amended, and any provision hereof may
be waived, only by an instrument in writing signed by the Employee and an
authorized officer of the Company.
15. Further Assurances. The parties agree to execute such further
instruments and to take such further actions as may reasonably be
necessary to carry out the intent of this Agreement.
16. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, written or oral,
between them with respect to such subject matter.
17. Notices. All notices and communications hereunder given or made
by any party hereto shall be in writing and shall be deemed
sufficiently given if delivered personally or if sent by registered or
certified mail, return receipt requested, by nationally recognized overnight
delivery service, or by facsimile with confirmation of transmission as
follows:
If to the Company, to:
Plymouth Rubber Company, Inc.
Address: 000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile:
Attention: President
If to Employee, to:
Address:
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18. Binding Effect and Assignment. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and permitted
assigns. The Company may, in its sole discretion, assign its rights and
obligations under this Agreement, or any part thereof, to any person or
entity. Except as otherwise provided in this Agreement, neither this
Agreement nor any rights or obligations hereunder may be assigned or
otherwise transferred by Employee without the prior written consent of
the Company's Board of Directors.
19. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the substantive laws of The
Commonwealth of Massachusetts without regard to its principles of
conflicts of laws.
20. Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original and all of which shall together
constitute the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Restricted Stock Grant and Repurchase Agreement as a contract under seal
on the date first above written.
PLYMOUTH RUBBER COMPANY, INC.
_______________________________________
By:
Its:
_______________________________________
Employee
For purposes of Section 3 only:
[ ], Escrow Agent
_______________________________________
By:
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