RAND LOGISTICS, INC. RESTRICTED SHARE AWARD AGREEMENT
Participant: Xxxxx
Xxxxxxxx
Xxxxx
Date: ______________________
Number
of
Restricted
Shares granted: 39,660
THIS AWARD AGREEMENT (this
"Agreement"), dated as of the Grant Date specified above, is entered into by and
between Rand Logistics, Inc., a Delaware corporation (the "Company"), and the
Participant specified above;
WHEREAS the Participant is the
President and Chief Executive Officer of and has a contract of employment with
the Company’s Subsidiary Lower Lakes Towing Ltd. (“Lower Lakes”), a Canadian
Corporation and the Executive is a resident of Canada;
WHEREAS, it has been determined that it
would be in the best interests of the Company to grant the Restricted Shares
provided herein to the Participant; and
NOW, THEREFORE, in consideration of the
mutual covenants and premises hereinafter set forth and for other good and
valuable consideration, the parties hereto hereby mutually covenant and agree as
follows:
1. Grant of Restricted Share
Award. The Company hereby grants to the Participant, as of the
Grant Date specified above, an award of the number of shares of the Company’s
Common Stock specified above, subject to the terms and conditions contained in
this Agreement (the “Restricted Shares”). The Participant agrees and
understands that nothing contained in this Agreement provides, or is intended to
provide, the Participant with any protection against potential future dilution
of the Participant’s stockholder interest in the Company for any
reason.
2. Vesting. The
Restricted Shares subject to this grant shall become unrestricted and vested as
follows:
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20%
on March 31, 2010 (including any amount previously vested), provided the
Participant is then employed by the Company and/or one of its
Subsidiaries;
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40%
on March 31, 2011 (including any amount previously vested), provided the
Participant is then employed by the Company and/or one of its
Subsidiaries;
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60%
on March 31, 2012 (including any amount previously vested), provided the
Participant is then employed by the Company and/or one of its
Subsidiaries;
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80%
on March 31, 2013 (including any amount previously vested), provided the
Participant is then employed by the Company and/or one of its
Subsidiaries; and
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100%
on March 31, 2014, provided the Participant is then employed by the
Company and/or one of its
Subsidiaries.
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2.2 If
the Participant’s employment with the Company and/or its subsidiaries terminates
as a result of (i) the Company or the Subsidiary, as the case may be,
terminating the Participant’s employment for Cause (as defined below) or (ii)
the Participant terminating his employment without Good Reason (as defined
below) or (iii) the Participant terminating his employment for Good Reason but
without 60 days notice, in each case, prior to the vesting of all or any portion
of the Restricted Shares awarded under this Agreement, then such Restricted
Shares shall immediately be cancelled and the Participant shall forfeit any
rights or interests in and with respect to any such Restricted
Shares. The Company may, in its sole discretion, determine, prior to
or within ninety (90) days after the date of any such termination, that all or a
portion of any the Participant’s unvested Restricted Shares shall not be so
cancelled and forfeited.
2.3 If
the Participant’s employment with the Company and/or its Subsidiaries terminates
for any reason other than by the Company or the Subsidiary, as the case may be,
for Cause or by the Participant without Good Reason or the Participant without
giving 60 days notice even if terminating for Good Reason, then the Participant
shall become 100% vested in the Restricted Shares awarded under this Agreement
as of the date of any such termination. For greater certainty, should
the employment of the Executive be terminated by the Executive’s death or
Disability, the Restricted Shares shall be become 100% vested.
2.4 In
the event of a Change of Control (as defined below), all restrictions, terms and
conditions applicable to the Restricted Shares shall be deemed lapsed and
satisfied as of the date of the Change of Control.
2.5 For
purposes of this Agreement:
(a) “Cause”
shall mean: (i) conviction of the Participant of a criminal offence involving
fraud, larceny, misappropriation of funds, embezzlement or dishonesty; (ii)
receipt by or on behalf of Participant or any member of Participant's immediate
family of any personal profit arising out of in connection with a transaction to
which the Company or a Subsidiary is party without making full prior disclosure
to the Company or such Subsidiary; (iii) any misfeasance, nonfeasance or
malfeasance by Participant which causes material harm to the Company or a
Subsidiary; (iv) breach by the Participant of any material term of his
Employment Agreement with Lower Lakes (or the Company or another Subsidiary if
one should be entered during the term of this Agreement), or failure of the
Participant to follow and carry out the lawful instructions of the Board of
Directors of Lower Lakes (or of a Subsidiary or the Company, as applicable), in
each case after notice and reasonable opportunity for the Participant to cure
such breach or failure; (v) the Participant having been under the influence of
drugs (other than prescription medicine or other medically-related drugs to the
extent that they are taken in accordance with their directions) or alcohol
during the performance of his duties under his Employment Agreement with Lower
Lakes or any other Subsidiary or the Company (it being understood that the
Participant will attend industry functions at which alcohol will be consumed by
the Participant), or while otherwise under the influence of drugs or alcohol,
engages in inappropriate conduct; or (vi) the Participant having engaged in
behavior that would constitute grounds for liability for sexual harassment or
discrimination.
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(b) “Change
of Control” shall mean: (i) the consummation of a merger, or a sale of voting
stock by the shareholders of the Company, in each case following which the
holders of voting stock of the Company immediately prior to the consummation of
such transaction do not hold at least 50.1% of the voting stock of the surviving
entity, (ii) the sale of all or substantially all the assets of the Company, or
(iii) a series of related transactions which has the effects referred to in
clause (i) or (ii) of this sentence.
(c) "Good
Reason" shall mean the occurrence of any of the following without the
Participant’s express written consent:
(i) Lower
Lakes assigning to the Participant duties or responsibilities inconsistent with
or inappropriate for his position as President with Lower Lakes, after notice to
Lower Lakes of, and reasonable opportunity of Lower Lakes to cure, such alleged
Good Reason;
(ii) failure
by Lower Lakes to permit the Participant to continue to participate in the Bonus
Plan in effect as set out in the Participant’s Employment Agreement with Lower
Lakes or to provide the Participant with benefits and other pension or
retirement plans in accordance with said employment agreement.
(iii) Lower
Lakes relocating the Participant's principal office outside of Port Dover,
Ontario, but only if Lower Lakes and the Participant cannot agree on terms and
conditions under which the Participant would relocate; or
(iv) any
breach by Lower Lakes of any material term of the Employment Agreement between
Lower Lakes and the Participant after notice to the Company and Lower Lakes of
such breach and reasonable opportunity to cure such breach.
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3. Delivery of Restricted
Shares. There shall be issued a stock certificate (or
certificates) in respect of the Restricted Shares. Such stock
certificate(s) shall be registered in the name of such Participant, and shall
bear, among other required legends, the following legend:
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"THE
TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF STOCK REPRESENTED
HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING, WITHOUT
LIMITATION, FORFEITURE EVENTS) CONTAINED IN THE AWARD AGREEMENT ENTERED
INTO BETWEEN THE REGISTERED OWNER HEREOF AND RAND LOGISTICS,
INC. A COPY OF SUCH AWARD AGREEMENT IS ON FILE IN THE OFFICE OF
THE SECRETARY OF RAND LOGISTICS, INC., 000 XXXXX XXXXXX, 00XX
XXXXX, XXX XXXX, XXX XXXX 00000. RAND LOGISTICS, INC. WILL
FURNISH TO THE RECORDHOLDER OF THE CERTIFICATE, WITHOUT CHARGE AND UPON
WRITTEN REQUEST AT ITS PRINCIPAL PLACE OF BUSINESS, A COPY OF SUCH AWARD
AGREEMENT. RAND LOGISTICS, INC. RESERVES THE RIGHT TO REFUSE TO
RECORD THE TRANSFER OF THIS CERTIFICATE UNTIL ALL SUCH RESTRICTIONS ARE
SATISFIED, ALL SUCH TERMS ARE COMPLIED WITH AND ALL SUCH CONDITIONS ARE
SATISFIED."
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Such
stock certificate evidencing such shares shall, in the sole discretion of
the Company, be deposited with and held in custody by the Company until
the restrictions thereon shall have lapsed and all of the terms and
conditions applicable to such grant shall have been
satisfied. After the lapse of the restrictions above in respect
of the Restricted Shares, a new certificate, without the legend set forth
above, shall be delivered to the Participant for the number of shares of
Common Stock which are no longer subject to such restrictions, terms and
conditions.
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4. Non-transferability. Prior
to the vesting of the Restricted Shares, no voluntary or involuntary sale,
transfer, pledge, encumbrance or other disposition or hypothecation of
Restricted Shares after issuance thereof to the Participant (or of any shares
subsequently issued in respect of such shares, whether as a stock dividend or
otherwise), shall or may, be made or suffered by the Participant or such
Participant’s estate, designated beneficiary or other legal
representative. Following the vesting of the Restricted Shares, the
shares may be transferred, sold, pledged, hypothecated or encumbered in
accordance with all applicable federal and state securities laws and the rules
and regulations thereunder.
5. Notices. Any
notice which may be required or permitted under this Agreement shall be in
writing and shall be delivered in person, or via facsimile transmission,
overnight courier service or certified mail, return receipt requested, postage
prepaid, properly addressed as follows:
5.1 If such notice is to the
Company, to the attention of the Secretary of Rand Logistics, Inc., 000 Xxxxx
Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or at such other address as the Company, by
notice to the Participant, shall designate in writing from time to
time.
5.2 If such notice is to the
Participant, at his or her address as shown on the Company’s records, or at such
other address as the Participant, by notice to the Company, shall designate in
writing from time to time.
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6. Governing
Law. Except as otherwise explicitly noted (and in particular
Section 7, below), this Agreement shall be governed by and construed in
accordance with the laws of Canada and the Province of Ontario (without giving
effect to the principles of conflicts of law). Each party to this Agreement
irrevocably agrees that any action or proceeding concerning or arising out of
the interpretation, enforcement and defense of the transactions contemplated by
this Agreement (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, employees or agents) shall be
commenced exclusively in the courts located in the Province of Ontario. Each
party and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or inconvenient venue for such proceeding. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law. EACH PARTY
HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.
7. Compliance with
Laws. The issuance of the Restricted Shares or Common Stock
pursuant to this Agreement shall be subject to, and shall comply with, any
applicable requirements of any federal and state securities laws, rules and
regulations (including, without limitation, the provisions of the Securities Act
of 1933, the Securities Exchange Act of 1934 and the respective rules and
regulations promulgated thereunder) and any other law or regulation applicable
thereto. The Company shall not be obligated to issue any of the
Restricted Shares or Common Stock pursuant to this Agreement if such issuance
would violate any such requirements.
8. Entire Agreement;
Amendment. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter contained herein,
and supersedes all prior agreements or prior understandings, whether written or
oral, between the parties relating to such subject matter. This
Agreement may only be modified or amended by a writing signed by both the
Company and the Participant.
9. Binding Agreement;
Assignment. This Agreement shall inure to the benefit of, be
binding upon, and be enforceable by the Company and its successors and
assigns. The Participant shall not assign any part of this Agreement
without the prior express written consent of the Company.
10. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
instrument.
11. Headings. The
titles and headings of the various sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
12. Further
Assurances. Each party hereto shall do and perform (or shall
cause to be done and performed) all such further acts and shall execute and
deliver all such other agreements, certificates, instruments and documents as
any party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated thereunder.
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13. Severability. The
invalidity or unenforceability of any provisions of this Agreement in any
jurisdiction shall not affect the validity, legality or enforceability of the
remainder of this Agreement in such jurisdiction or the validity, legality or
enforceability of any provision of this Agreement in any other jurisdiction, it
being intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the Company has
caused this Agreement to be executed by its duly authorized officer, and the
Participant has hereunto set his hand, all as of the Grant Date specified
above.
By:__________________________________
Name:_____________________________
Title:
_____________________________
_____________________________________
XXXXX XXXXXXXX
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