SKYSTAR BIO-PHARMACEUTICAL COMPANY RESTRICTED STOCK AWARD AGREEMENT
This Restricted Stock Award Agreement
(“Agreement”) is
made and entered into as of the date set forth below, by and between SKYSTAR
BIO-PHARMCEUTICAL COMPANY, a Nevada corporation (the “Company”), and the person
named as “Grantee” in Section 1(b) (“Grantee”):
In
consideration of the covenants herein set forth, the parties hereto agree as
follows:
1. Stock Award
Information.
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(a) Date
of Award:
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April
16, 2010
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(b) Grantee:
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R.
Xxxxx Xxxxxx
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(c) Number
of Shares:
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10,000
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(d) Original
Value:
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$
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(e) Amount
Paid for Shares by Grantee:
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$-0-
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2. Acknowledgements.
(a) Grantee,
a director of the Company, has entered into a Services Agreement dated as
of April 16, 2010 (the “Service
Agreement”), to provide services to the Company unrelated to his
directorship.
(b) The
Company has adopted a 2010 Incentive Stock Plan (the “Plan”) under which the
Company’s common stock (“Stock”) may be offered to
directors, officers, employees and consultants pursuant to an exemption from
registration under the Securities Act of 1933, as amended (the “Securities Act”) provided by
Rule 701 thereunder.
3. Shares; Value. The
Company hereby grants to Grantee, upon and subject to the terms and conditions
herein stated, the number of shares of Stock set forth in Section 1(c) (the
“Shares”), which Shares
have a fair value per share (“Original Value”) equal to the
amount set forth in Section 1(d). For the purpose of this Agreement, the terms
“Share” or “Shares” shall include the
original Shares plus any shares derived therefrom, regardless of the fact that
the number, attributes or par value of such Shares may have been altered by
reason of any recapitalization, subdivision, consolidation, stock dividend or
amendment of the corporate charter of the Company. The number of Shares covered
by this Agreement and the Original Value thereof shall be proportionately
adjusted for any increase or decrease in the number of issued shares resulting
from a recapitalization, subdivision or consolidation of shares or the payment
of a stock dividend, or any other increase or decrease in the number of such
shares effected without receipt of consideration by the
Company.
4. Investment Intent.
Grantee represents and agrees that Grantee is accepting the Shares for the
purpose of investment and not with a view to, or for resale in connection with,
any distribution thereof; and that, if requested, Grantee shall furnish to the
Company a written statement to such effect, satisfactory to the Company in form
and substance. If the Shares are registered under the Securities Act, Grantee
shall be relieved of the foregoing investment representation and agreement and
shall not be required to furnish the Company with the foregoing written
statement.
5. Vesting. The
Shares shall be issued in the amounts and on the dates specified in the
following schedule so long as the Service Agreement remains in effect on such
dates. The Committee may at any time accelerate the vesting schedule
specified in this Section 3.
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Number of Shares Vested
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Vesting Date
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2,500
(25%)
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June
30, 2010
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2,500
(25%)
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September
30, 2010
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2,500
(25%)
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December
31, 2010
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2,500
(25%)
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March
31, 2011
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6. Restriction and
Conditions.
(a) Any
book entries for the Shares granted herein shall bear an appropriate legend, as
determined by the Committee in its sole discretion, to the effect that such
shares are subject to restrictions as set forth herein and in the
Plan.
(b) The
Shares granted herein may not be sold, assigned, transferred, pledged or
otherwise encumbered or disposed of by the Grantee prior to
vesting.
(c) The
Shares shall further be subject to the restrictions and conditions set forth
hereinafter and in the Plan, including the limitations on
transferability.
7. Repurchase of
Shares
(a) Repurchase Right. For
the purposes of this Section, a “Repurchase Event” shall mean
an occurrence of one of (i) the termination of the Services Agreement,
voluntarily or involuntarily and with or without cause; or (ii) any attempted
transfer by the Grantee of Shares, or any interest therein, in violation of this
Agreement. Upon the occurrence of a Repurchase Event, the Company shall have the
right to purchase all or any portion of the Shares of Grantee, at a price equal
to the original amount paid for the Shares by the Grantee, as set forth in
Section 1(e) above.
(b) Exercise of Repurchase
Right. Any Repurchase Right under Paragraph 7(a) shall be exercised by
giving notice of exercise as provided herein to Grantee or the estate of
Grantee, as applicable. Such right shall be exercised, and the repurchase price
thereunder shall be paid, by the Company within a ninety (90) day period
beginning on the date of the occurrence of the Repurchase Event. Any Shares not
purchased by the Company hereunder shall no longer be subject to the provisions
of this Section 7.
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(c) Acceptance of
Restrictions. Acceptance of the Shares shall constitute the Grantee’s
agreement to such restrictions and the legending of his certificates with
respect thereto. Notwithstanding such restrictions, however, so long as the
Grantee is the holder of the Shares, or any portion thereof, he shall be
entitled to receive all dividends declared on and to vote the Shares and to all
other rights of a shareholder with respect thereto.
(d) Permitted
Transfers. Notwithstanding any provisions in this Section 7 to
the contrary, the Grantee may transfer Shares subject to this Agreement to his
parents, spouse, children, or grandchildren, or a trust for the benefit of the
Grantee or any such transferee(s); provided, that such permitted transferee(s)
shall hold the Shares subject to all the provisions of this Agreement (all
references to the Grantee herein shall in such cases refer mutatis mutandis to
the permitted transferee, except in the case of clause (iv) of Section 5(a)
wherein the permitted transfer shall be deemed to be rescinded); and provided
further, that notwithstanding any other provisions in this Agreement, a
permitted transferee may not, in turn, make permitted transfers without the
written consent of the Grantee and the Company.
8. Representations and
Warranties of the Grantee. This Agreement and the issuance and grant of
the Shares hereunder is made by the Company in reliance upon the express
representations and warranties of the Grantee, which by acceptance hereof the
Grantee confirms that:
(a) The
Shares granted to him pursuant to this Agreement are being acquired by him for
his own account, for investment purposes, and not with a view to, or for sale in
connection with, any distribution of the Shares. It is understood that the
Shares have not been registered under the Act by reason of a specific exemption
from the registration provisions of the Act which depends, among other things,
upon the bona fide nature of his representations as expressed
herein;
(b) The
Shares must be held by him indefinitely unless they are subsequently registered
under the Act and any applicable state securities laws, or an exemption from
such registration is available. The Company is under no obligation to register
the Shares or to make available any such exemption;
(c) Grantee
further represents that Grantee has had access to the financial statements or
books and records of the Company, has had the opportunity to ask questions of
the Company concerning its business, operations and financial condition and to
obtain additional information reasonably necessary to verify the accuracy of
such information,
(d) Unless
and until the Shares represented by this Grant are registered under the
Securities Act, all certificates representing the Shares and any certificates
subsequently issued in substitution therefor and any certificate for any
securities issued pursuant to any stock split, share reclassification, stock
dividend or other similar capital event shall bear legends in substantially the
following form:
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THESE
SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE QUALIFIED UNDER THE SECURITIES
ACT OF 1933 (THE ’SECURITIES ACT’) OR UNDER THE APPLICABLE OR SECURITIES LAWS OF
ANY STATE. NEITHER THESE SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION
UNDER THE SECURITIES ACT OR ANY APPLICABLE SECURITIES LAWS OF ANY STATE, UNLESS
PURSUANT TO EXEMPTIONS THEREFROM.
(e) All
certificates representing the Shares shall bear legends in substantially the
following form:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO THAT CERTAIN
STOCK AWARD AGREEMENT DATED __________, 2010 BETWEEN THE COMPANY AND THE ISSUEE
WHICH RESTRICTS THE TRANSFER OF THESE SHARES WHICH ARE SUBJECT TO REPURCHASE BY
THE COMPANY UNDER CERTAIN CONDITIONS.
and/or
such other legend or legends as the Company and its counsel deem necessary or
appropriate. Appropriate stop transfer instructions with respect to the Shares
have been placed with the Company’s transfer agent.
9. Stand-off Agreement.
Grantee agrees that, in connection with any registration of the Company’s
securities under the Securities Act, and upon the request of the Company or any
underwriter managing an underwritten offering of the Company’s securities,
Grantee shall not sell, short any sale of, loan, grant an option for, or
otherwise dispose of any of the Shares (other than Shares included in the
offering) without the prior written consent of the Company or such managing
underwriter, as applicable, for a period of at least one year following the
effective date of registration of such offering. This Section 9 shall survive
any termination of this Agreement.
10. Termination of
Agreement. This Agreement shall terminate on the written agreement of all
parties to that effect.
11. Agreement Subject to Plan;
Applicable Law. This Grant is made pursuant to the Plan and shall be
interpreted to comply therewith. A copy of such Plan is available to
Grantee, at no charge, at the principal office of the Company. Any provision of
this Agreement inconsistent with the Plan shall be considered void and replaced
with the applicable provision of the Plan. This Grant shall be governed by the
laws of the State of Nevada and subject to the exclusive jurisdiction of the
courts therein.
12. Miscellaneous.
(a) Notices. Any notice
required to be given pursuant to this Agreement or the Plan shall be in writing
and shall be deemed to have been duly delivered upon receipt or, in the case of
notices by the Company, five (5) days after deposit in the U.S. mail, postage
prepaid, addressed to Grantee at the last address provided by Grantee for use in
the Company’s records.
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(b) Entire Agreement.
This instrument constitutes the sole agreement of the parties hereto with
respect to the Shares. Any prior agreements, promises or representations
concerning the Shares not included or reference herein shall be of no force or
effect. This Agreement shall be binding on, and shall inure to the benefit of,
the Parties hereto and their respective transferees, heirs, legal
representatives, successors, and assigns.
(c) Enforcement. This
Agreement shall be construed in accordance with, and governed by, the laws of
the State of Nevada and subject to the exclusive jurisdiction of the courts
located in the County of Xxxxx in the State of Nevada. If Grantee attempts to
transfer any of the Shares subject to this Agreement, or any interest in them in
violation of the terms of this Agreement, the Company may apply to any court for
an injunctive order prohibiting such proposed transaction, and the Company may
institute and maintain proceedings against Grantee to compel specific
performance of this Agreement without the necessity of proving the existence or
extent of any damages to the Company. Any such attempted transaction shares in
violation of this Agreement shall be null and void.
(d) Validity of
Agreement. The provisions of this Agreement may be waived, altered,
amended, or repealed, in whole or in part, only on the written consent of all
parties hereto. It is intended that each Section of this Agreement shall be
viewed as separate and divisible, and in the event that any Section shall be
held to be invalid, the remaining Sections shall continue to be in full force
and effect.
[SIGNATURE
PAGE FOLLOWS]
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In Witness Whereof, the
parties have executed this Agreement as of the date first above
written.
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COMPANY:
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SKYSTAR
BIO-PHARMACEUTICAL
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COMPANY
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a
Nevada corporation
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By:
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/s/
Xxxxxxx Xx
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Name:
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Xxxxxxx
Xx
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Title:
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Chief
Executive Officer
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GRANTEE:
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By:
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/s/
R. Xxxxx Xxxxxx
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| Name: |
R.
Xxxxx
Xxxxxx
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