FORM OF RESTRICTED STOCK AGREEMENT
Exhibit 10.13
This Restricted Stock Agreement, dated as of the Grant Date set forth on the signature page
hereof, between Explorer Holding Corporation, a Delaware corporation (the “Company”), and
the participant whose name appears on the signature page hereof (the “Participant”), is
being entered into pursuant to the Equity Incentive Plan of Explorer Holding Corporation (the
“Plan”). Capitalized terms used herein without definition have the meaning given in the
Plan.
1. Grant of Restricted Shares. Subject to the terms and conditions of this Agreement and
the Plan, and subject to (i) the Participant becoming a party to the Stockholders Agreement
if the Participant is not already a party to such agreement and (ii) the Participant’s
delivery to the Company of duly executed and undated instruments of transfer or assignment in
blank, to be used by the Company only for transfers required under the Plan, this Agreement or the
Stockholders Agreement, the Company hereby evidences and confirms its grant to the Participant,
effective as of the Grant Date of the number of shares of restricted stock set forth on the
signature page hereof (the “Restricted Shares”). Upon grant, one or more stock
certificates registered in the Participant’s name and representing the Restricted Shares, which
certificates shall bear the legends set forth in Section 5(c), will be delivered on behalf of the
Participant to the Secretary of the Company, to be held in custody until the later of the date
(i) they become vested in accordance with Section 3(a) and (ii) the Participant
requests such instrument from the Company.
2. Forfeiture Risk. The Participant hereby (i) appoints the Company as the limited
attorney-in-fact of the Participant to take such actions as may be necessary or appropriate solely
to effectuate a transfer of the record ownership of any such shares that are unvested and forfeited
hereunder and (ii) agrees to sign such stock powers and take such other actions as the
Company may reasonably request to accomplish the transfer of any unvested Restricted Shares that
are forfeited hereunder. The Company does hereby indemnify and hold harmless the Participant from
any wrongful use of the power of attorney granted above.
| 3. | Vesting of Restricted Shares. |
(a) Restricted Period. One-third of the Restricted Shares granted pursuant to this
Agreement shall be fully vested as of the date hereof and, subject to the continued service of the
Participant as a Director of the Company through the applicable vesting date, one-third of such
Restricted Shares shall vest on each of September 30, 20 and Xxxxx 00, 00 .
(x) Termination of Employment. Notwithstanding anything contained in this Agreement
to the contrary, if the Participant’s service as a director of the Company
terminates for any reason prior to the applicable vesting date, any unvested Restricted Shares
shall be forfeited.
4. Restrictions on Transfer. The Restricted Shares are subject to the transfer
restrictions contained in the Stockholders Agreement. In addition, unvested Restricted Shares may
not be transferred, other than by will or by the laws of descent and distribution and provided that
the deceased Participant’s beneficiary or the representative of his or her estate acknowledges and
agrees in writing, in a form reasonably acceptable to the Company, to be bound by the provisions of
the Plan and this Agreement as if such beneficiary or estate were the Participant. Upon the
vesting of the Restricted Shares, the Company shall cause Shares without the restrictions referred
to in this Section 4 (“unrestricted Common Stock”) to be issued to the Participant.
5. Participant’s Representations, Warranties and Covenants.
(a) Participant Intent. Participant is acquiring the Restricted Shares for investment
for Participant’s own account, not as a nominee or agent, and not with the view to, or for resale
in connection with, any distribution thereof.
(b) No Conflicts; No Consents. The execution and delivery by Participant of this
Agreement, the consummation of the transactions contemplated hereby and the performance of
Participant’s obligations hereunder do not and will not (a) materially conflict with or result in a
material violation or breach of any term or provision of any Law applicable to either Participant
or the Restricted Shares or, (b) violate in any material respect, conflict with in any material
respect or result in any material breach of, or constitute (with or without notice or lapse of time
or both) a material default under, or require either Participant to obtain any consent, approval or
action of, make any filing with or give any notice to any Person as a result or under the terms of,
any contract, agreement, instrument, commitment, arrangement, or understanding to which Participant
is a party.
(c) Legends. The Participant acknowledges and agrees that the Restricted Shares
received hereby and represented by physical certificate(s) will bear the following legend (or one
to substantially similar effect):
“THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AND CERTAIN OTHER AGREEMENTS SET FORTH IN
THE EQUITY INCENTIVE PLAN OF BOOZ XXXXX XXXXXXXX HOLDING
CORPORATION AND A RESTRICTED STOCK AGREEMENT BETWEEN THE ISSUER
AND THE HOLDER OF THIS CERTIFICATE DATED AS OF . A COPY
OF SUCH PLAN AND AGREEMENT SHALL BE FURNISHED WITHOUT CHARGE BY
THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
(d) Compliance with Rule 144. If any of the Restricted Shares are to be disposed of
in accordance with Rule 144, the Participant shall transmit to the Company an executed copy of Form
144 (if required by Rule 144) no later than the time such form is required to be transmitted to the
Commission for filing and such other documentation as the Company may reasonably require to assure
compliance with Rule 144 in connection with such disposition.
(e) Participant Status. The Participant represents and warrants that, as of the date
hereof, the Participant is an officer, employee or director of the Company or a Subsidiary.
(f) Section 83(b) Election. The Participant agrees that, within 20 days of the date
of this Agreement, the Participant shall give notice to the Company as to whether or not the
Participant has made an election pursuant to Section 83(b) of the Internal Revenue Code of 1986, as
amended, with respect to the Restricted Shares acquired hereunder (an “83(b) election”). Any such
83(b) election shall use as the value of the Restricted Shares the Fair Market Value of the
Restricted Shares on the Grant Date determined as provided in the Plan, and the Participant shall
take a consistent position on the Participant’s tax returns.
6. Liquidity Event.
(a) Accelerated Vesting. Upon the occurrence of a Liquidity Event, any unvested
Restricted Shares shall become fully vested.
(b) Definitions. For purposes of this Section 6, the following terms will have the
definitions set forth below:
“Liquidity Event” shall mean either (a) the consummation of the sale, transfer,
conveyance or other disposition in one or a series of transactions, of the equity securities of the
Company or its successor held, directly or indirectly, by all of the Principal Stockholders in
exchange for cash, or in the case of any transaction resulting in the exchange for consideration
other than cash (“non-cash consideration”) the receipt of cash upon the disposition of such
non-cash consideration, such that immediately following such transaction or disposition (or series
of related transactions or dispositions), the total number of all equity securities held, directly
or indirectly, by all of the Principal Stockholders and any Affiliate of any Principal Stockholders
is, in the aggregate, less than 30% of the total number of equity securities (as such securities
may be adjusted for the occurrence of a corporate event) received by all of the Principal
Stockholders and any Affiliate of any Principal Stockholders in respect of their Invested Capital;
(b) the
consummation of any Company Sale in which more than 60% of the consideration to the Principal
Stockholders in such Company Sale is paid in cash or Publicly Traded Securities; or (c) the
consummation of the sale, lease, transfer, conveyance or other disposition (other than by way of
merger, recapitalization, sale of stock, equity purchase or consolidation), in one or a series of
transactions, of all or substantially all of the assets of the Company, or the Company and its
Subsidiaries taken as a whole, to any “person “ (as such term is defined in Section 13(d)(3) of the
Exchange Act) other than to any Principal Stockholders or an Affiliate of any Principal
Stockholders.
“Company Sale” shall mean the consummation of any transaction or series of
transactions (including, without limitation, any merger, recapitalization, reorganization, sale of
stock or other similar transaction) pursuant to which one or more Persons or group of Persons
(other than any Principal Stockholder) acquires shares of common stock of the Company possessing
the voting power (without taking into account the Stockholders Agreement or any other agreement or
proxy limiting the voting power of the holder of such securities) sufficient to elect a majority of
the members of the Board or the board of directors of the successor to the Company.
“Initial Investment” shall mean the shares of Common Stock acquired by the Principal
Stockholders in connection with their investment in the Company on the Effective Date.
“Invested Capital” shall mean the dollar amount paid by the Principal Stockholders for
the Initial Investment and any subsequent investment by the Principal Stockholders, including any
fees and expenses paid by any Principal Stockholder.
“Principal Stockholder” means Explorer Coinvest LLC, a Delaware limited liability
company and any of its affiliates to which Explorer Coinvest LLC or any other Person transfers
Company Common Stock or to which the Company issues Company Common Stock.
7. Dividends, etc. The Participant shall be entitled to (i) receive all dividends or other
distributions at the time (and in the same calendar year as) such dividends or distributions are
paid with respect to those vested and unvested Restricted Shares of which the Participant is the
record owner on the record date for such dividend or other distribution, and (ii) subject to the
terms of the Stockholders Agreement, vote any Restricted Shares of which the Participant is the
record owner on the record date for such vote; provided, however, that any property (other
than cash) distributed with respect to a Restricted Share (the “Associated Share”) acquired
hereunder, including without limitation a distribution of Restricted Shares by reason of a stock
dividend, stock split or otherwise, or a distribution of other securities with respect to an
Associated Share, shall be subject to the restrictions of this Agreement in the same manner and for
so long as the
Associated Share remains subject to such restrictions, and shall be promptly forfeited if and when
the Associated Share is so forfeited.
8. Miscellaneous.
(a) Tax Withholding. Whenever any cash or other payment is to be made hereunder or
with respect to the Restricted Shares, the Company or any Subsidiary shall have the power to
withhold an amount (in cash or in Common Stock granted hereunder upon vesting) sufficient to
satisfy federal, state, and local withholding tax requirements relating to such transaction and the
Company or such Subsidiary may defer the payment of cash or other payment until such requirements
are satisfied; provided, however, that in the event that the Company withholds
shares issuable to the Participant (or any portion thereof) to satisfy any applicable withholding
taxes, the Company shall withhold a number of whole shares having a Fair Market Value, determined
as of the date of vesting, not in excess of the minimum of tax required to be withheld by law (or
such lower amount as may be necessary to avoid liability award accounting). The Participant shall
be responsible for all withholding taxes and other tax consequences of this award of Restricted
Shares.
(b) No Right to Continued Service. Nothing in the Plan or this Agreement shall
interfere with or limit in any way the right of the Company or any of its Subsidiaries to terminate
the Participant’s service as a member of the Board at any time, or confer upon the Participant any
right to continue as a member of the Board.
(c) Binding Effect; Benefits. This Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective successors and assigns. Nothing in
this Agreement, express or implied, is intended or shall be construed to give any person other than
the parties to this Agreement or their respective successors or assigns any legal or equitable
right, remedy or claim under or in respect of any agreement or any provision contained herein.
(d) Amendment. This Agreement may not be amended, modified or supplemented orally,
but only by a written instrument executed by the Participant and the Company.
(e) Assignability. Neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by the Company or the
Participant without the prior written consent of the other party,
provided that the Company
may assign all or any portion of its rights or obligations under this Agreement to one or more
persons or other entities designated by it.
(f) Applicable Law. This Agreement shall be construed in accordance with and governed
by the laws of the State of Delaware, without reference to principles of conflict
of laws which would give rise to the applicable of the substantive law of another
jurisdiction.
(g) Severability; Blue Pencil. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall not be affected
thereby.
(h) Consent to Electronic Delivery. By executing this Agreement, the Participant
hereby consents to the delivery of information (including, without limitation, information required
to be delivered to the Participant pursuant to applicable securities laws) regarding the Company
and the Subsidiaries, the Plan, and the Restricted Shares via the Company web site or other
electronic delivery.
(i) Section and Other Headings, etc. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
(j) Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by courier service, by cable, by facsimile, by
telegram, by telex or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address for a party as shall
be specified in a notice given in accordance with this Section 8(j):
| (i) | if to the Company: | ||
| Explorer Holding Corporation 0000 Xxxxxxxxxxxx Xxx XX Xxxxx 000 Xxxxx Xxxxxxxxxx, XX 00000 Attention: Xxx Xxxxxxxx Facsimile No.: (000) 000-0000 |
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| with a copy to: Debevoise & Xxxxxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxx X. Xxxxx Facsimile No.: (000) 000-0000 |
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| (ii) | if to the Participant, to the address set forth on the signature page hereof. |
(k) Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall constitute one and the
same instrument.
– Signature page follows –
IN WITNESS WHEREOF, the Company and the Participant have executed this Agreement as of the
Grant Date.
| EXPLORER HOLDING CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| PARTICIPANT |
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| Name: | ||||
| Address of Participant: | ||||
| Facsimile: | ||||
| Email: | ||||
Grant Date
|
, 20 | |||||
Restricted Shares |
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