RESTRICTED STOCK UNIT AGREEMENT FORTRESS INTERNATIONAL GROUP, INC.
Exhibit
10.14
AGREEMENT
made as of the _______ day of ___________, 200_
(the “Grant Date”), between Fortress International Group, Inc. (the “Company”),
a Delaware corporation, and [________________________] (the
“Participant”).
WHEREAS,
the Company has adopted the 2006 Omnibus Incentive Compensation Plan (the
“Plan”), to promote the interests of the Company by providing an incentive for
Employees and Nonemployee Directors of the Company;
WHEREAS,
pursuant to the provisions of Article 10 of the Plan, the Company desires to
grant to the Participant restricted stock units (“RSUs”) related to the
Company’s common stock, $0.0001 par value per share (“Common Stock”), in
accordance with the provisions of the Plan, all on the terms and conditions
hereinafter set forth; and
WHEREAS,
the Company and the Participant understand and agree that any terms used and not
defined herein have the meanings ascribed to such terms in the
Plan.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Grant of
Award. The Company hereby grants to the Participant an
aggregate of ___________ RSUs (the “Award”) which represents a contingent
entitlement of the Participant to receive shares of Common Stock, on the terms
and conditions and subject to all the limitations set forth herein and in the
Plan, which is incorporated herein by reference. The Participant
acknowledges receipt of a copy of the Plan.
2. Vesting of
Award.
(a) Subject
to the terms and conditions set forth in this Agreement and the Plan, the Award
granted hereby shall vest as follows provided that the Participant remains an
Employee or a Nonemployee Director on the Vesting Date:
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Number of
RSUs
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Vesting
Date
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All
of the RSUs
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Upon
attainment of a $3.00 per share closing
price
of the Company’s Common Stock for 20
consecutive
trading days
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On the
Vesting Date set forth above, the Participant shall be entitled to receive such
number of shares of Common Stock equivalent to the number of RSUs set forth
opposite the Vesting Date provided that the Participant is employed by the
Company or a Subsidiary on the Vesting Date. Such shares of Common
Stock shall thereafter be delivered by the Company to the Participant within 5
days of the Vesting Date and in accordance with this Agreement and the
Plan. The purchase price is $0.0001 per share payable if and
when shares of Common Stock are issued by the Company, which payment will be
made by the Company on behalf of the Participant as compensation for the
Participant’s prior service to the Company and which amount will be reported as
income on the Participant’s W-2 (or other applicable form) in the year of
payment. Notwithstanding the foregoing, if the Participant is a
“specified employee” (as defined under Section 409A of the Code) on the Vesting
Date then such payment of shares of Common Stock, if required by Section 409A of
the Code, will be made six months after the date of such Separation from Service
(as defined in Section 409A of the Code).
(b) Notwithstanding
the foregoing, in the event of a Change in Control prior to the termination of
this Agreement, the RSUs shall vest in full as of the date of the Change in
Control and shall be paid out in shares of Common Stock in accordance with the
provisions of Section 14 of the Plan.
(c) Except
as otherwise set forth in this Agreement, if the Participant ceases to be
employed for any reason by the Company or a Subsidiary (the “Termination”) prior
to the Vesting Date set forth in Section 2(a) above, then as of the date on
which the Participant’s employment terminates, this Award shall immediately be
forfeited to the Company and this Agreement shall terminate and be of no further
force or effect.f
(d) If
the Vesting Date has not occurred prior to December 31, 2010, then this Award
shall expire and this Agreement shall terminate and be of no further force or
effect.
3. Prohibitions on Transfer and
Sale. This Award (including any additional RSUs received by
the Participant as a result of stock dividends, stock splits or any other
similar transaction affecting the Company's securities without receipt of
consideration) shall not be transferable by the Participant otherwise than by
will or by the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act or the rules thereunder. Except as
provided in the previous sentence, the shares of Common Stock to be issued
pursuant to this Agreement shall be issued, during the Participant's lifetime,
only to the Participant (or, in the event of legal incapacity or incompetence,
to the Participant's guardian or representative). This Award shall not be
assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar
process. Any attempted transfer, assignment, pledge, hypothecation or
other disposition of this Award or of any rights granted hereunder contrary to
the provisions of this Section 3, or the levy of any attachment or similar
process upon this Award shall be null and void.
4. Adjustments. The
Plan contains provisions covering the treatment of RSUs and shares of Common
Stock in a number of contingencies such as stock splits, mergers and upon a
Change in Control. Provisions in the Plan for adjustment with respect
to this Award and the related provisions with respect to successors to the
business of the Company are hereby made applicable hereunder and are
incorporated herein by reference. In addition, the per share closing
price set forth in Section 2 hereof shall also be adjusted as appropriate to
reflect any stock split or other adjustment event set forth in the
Plan.
5. Securities Law
Compliance. The Participant specifically acknowledges and
agrees that any sales of shares of Common Stock shall be made in accordance with
the requirements of the Securities Act of 1933, as amended. The Company
currently has an effective registration statement on file with the Securities
and Exchange Commission with respect to the Common Stock to be granted
hereunder. The Company intends to maintain this registration
statement but has no obligation to do so. If the registration
statement ceases to be effective for any reason or there is a restriction under
foreign law, you will not be able to transfer or sell any of the shares of
Common Stock issued to you pursuant to this Agreement unless exemptions from
registration or filings under applicable securities laws are
available. The Company shall not be obligated to either issue the
Common Stock or permit the resale of any shares of Common Stock if such issuance
or resale would violate any applicable securities law, rule or
regulation.
6. Rights as a
Stockholder. The Participant shall have no right as a
stockholder, including voting and dividend rights, with respect to the RSUs
subject to this Agreement.
7. Incorporation of the
Plan. The Participant specifically understands and agrees that
the RSUs and the shares of Common Stock to be issued under the Plan will be
issued to the Participant pursuant to the Plan, a copy of which Plan the
Participant acknowledges he or she has read and understands and by which Plan he
or she agrees to be bound. The provisions of the Plan are
incorporated herein by reference.
8. Tax Liability of the
Participant and Payment of Taxes. The Participant acknowledges and agrees
that any income or other taxes due from the Participant with respect to this
Award or the shares of Common Stock to be issued pursuant to this Agreement or
otherwise sold shall be the Participant’s responsibility. Without
limiting the foregoing, the Participant agrees that if under applicable law the
Participant will owe taxes on the Vesting Date the Company shall be entitled to
immediate payment from the Participant of the amount of any tax required to be
withheld by the Company. Any taxes due shall be paid, at the option of the
Company as follows:
(a) through
reducing the number of shares of Common Stock actually issued to the Participant
on the Vesting Date in an amount equal to the amount of minimum withholding tax
due and payable by the Company. Fractional shares will not be
retained to satisfy any portion of the withholding tax. Accordingly,
the Participant agrees that in the event that the amount of withholding owed
would result in a fraction of a share being owed, that amount will be satisfied
by withholding the fractional amount from the Participant’s
paycheck;
(b) requiring
the Participant to deposit with the Company an amount of cash equal to the
amount determined by the Company to be required with respect to the statutory
minimum of the Participant’s estimated total federal, state and local tax
obligations or otherwise withholding from the Participant’s paycheck an amount
equal to the withholding tax due and payable; or
(c) authorizing
the sale by the Participant on the Vesting Date of such number of shares of
Common Stock as the Company instructs a registered broker to sell to satisfy the
Company’s withholding obligations, after deduction of the broker’s commission,
and the broker shall be required to remit to the Company the cash necessary in
order for the Company to satisfy its withholding obligation. In
connection with such sale, the Participant shall execute any such documents
requested by broker in order to effectuate the sale of the shares and payment of
the withholding obligation to the Company.
The
Company shall not deliver any shares of Common Stock to the Participant until it
is satisfied that all required withholdings have been made.
9. Participant Acknowledgements
and Authorizations.
The
Participant acknowledges the following:
(a) The
Company is not by the Plan or this Award obligated to continue the Participant
as an Employee or a Nonemployee Director.
(b) The
Plan is discretionary in nature and may be suspended or terminated by the
Company at any time.
(c) The
grant of this Award is considered a one-time benefit and does not create a
contractual or other right to receive any other award under the Plan, benefits
in lieu of awards or any other benefits in the future.
(d) The
Plan is a voluntary program of the Company and future awards, if any, will be at
the sole discretion of the Company, including, but not limited to, the timing of
any grant, the amount of any award, vesting provisions and the purchase price,
if any.
(e) The
value of this Award is an extraordinary item of compensation outside of the
scope of any employment. As such the Award is not part of normal or
expected compensation for purposes of calculating any severance, resignation,
redundancy, end of service payments, bonuses, long-service awards, pension or
retirement benefits or similar payments. The future value of the
shares of Common Stock is unknown and cannot be predicted with
certainty.
(f) The
Participant authorizes his or her employer to furnish the Company (and any agent
administering the Plan or providing recordkeeping services) with such
information and data as it shall request in order to facilitate the grant of the
Award and the administration of the Plan, and the Participant waives any data
privacy rights he or she may have with respect to such information or the
sharing of such information.
10. Notices. Any
notices required or permitted by the terms of this Agreement or the Plan shall
be given by recognized courier service, facsimile, registered or certified mail,
return receipt requested, addressed as follows:
If to the
Company:
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Attn:
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Chairman
of the Board
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Facsimile
Number:
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If to the
Participant:
____________________________________
____________________________________
____________________________________
or to
such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been
given on the earliest of receipt, one business day following delivery by the
sender to a recognized courier service, or three business days following mailing
by registered or certified mail.
11. Assignment and
Successors.
(a) This
Agreement is personal to the Participant and without the prior written consent
of the Company shall not be assignable by the Participant otherwise than by will
or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by the Participant’s legal
representatives.
(b) This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
(c) The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place.
12. Governing
Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware, without giving effect to the
conflict of law principles thereof. For the purpose of litigating any
dispute that arises under this Agreement, whether at law or in equity, the
parties hereby consent to exclusive jurisdiction in the State of Maryland and agree that such
litigation shall be conducted in the state courts of Maryland or the federal
courts of the United States for the District of Maryland.
13. Severability. If
any provision of this Agreement is held to be invalid or unenforceable by a
court of competent jurisdiction, then such provision or provisions shall be
modified to the extent necessary to make such provision valid and enforceable,
and to the extent that this is impossible, then such provision shall be deemed
to be excised from this Agreement, and the validity, legality and enforceability
of the rest of this Agreement shall not be affected thereby.
14. Entire
Agreement. This Agreement, together with the Plan, constitutes
the entire agreement and understanding between the parties hereto with respect
to the subject matter hereof and supersedes all prior oral or written agreements
and understandings relating to the subject matter hereof. No
statement, representation, warranty, covenant or agreement not expressly set
forth in this Agreement shall affect or be used to interpret, change or restrict
the express terms and provisions of this Agreement provided, however, in any
event, this Agreement shall be subject to and governed by the Plan.
15. Modifications and
Amendments; Waivers and Consents. The terms and provisions of
this Agreement may be modified or amended as provided in the
Plan. Except as provided in the Plan, the terms and provisions of
this Agreement may be waived, or consent for the departure therefrom granted,
only by written document executed by the party entitled to the benefits of such
terms or provisions. No such waiver or consent shall be deemed to be
or shall constitute a waiver or consent with respect to any other terms or
provisions of this Agreement, whether or not similar. Each such
waiver or consent shall be effective only in the specific instance and for the
purpose for which it was given, and shall not constitute a continuing waiver or
consent.
16. Counterparts. This
Agreement may be executed in one or more counterparts, and by different parties
hereto on separate counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
17. Data
Privacy. By entering into this Agreement, the
Participant: (i) authorizes the Company and each Subsidiary, and any
agent of the Company or any Subsidiary administering the Plan or providing Plan
record keeping services, to disclose to the Company or any of its Subsidiaries
such information and data as the Company or any Subsidiary shall request in
order to facilitate the grant of RSUs and the administration of the Plan; (ii)
waives any data privacy rights he or she may have with respect to such
information; and (iii) authorizes the Company and each Subsidiary to store and
transmit such information in electronic form.
18. Section
409A. Notwithstanding any other provision of this Agreement to
the contrary, the Agreement shall be interpreted and at all times administered
in a manner that avoids the inclusion of compensation in income under Section
409A(a)(1) of the Code. Any provision inconsistent with Section 409A
of the Code will be read out of the Agreement. It is intended that
each installment of the payments and benefits provided under this Agreement
shall be treated as a separate “payment” for purposes of Section 409A of the
Code. Neither the Company nor the Participant shall have the right to
accelerate or defer the delivery of any such payments or benefits except to the
extent specifically permitted or required by Section 409A of the
Code.
[THE NEXT
PAGE IS THE SIGNATURE PAGE]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
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By:
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Name:
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Title:
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PARTICIPANT:
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Name:
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