MERISEL, INC. FORM OF RESTRICTED STOCK AGREEMENT FOR EXECUTIVES AND KEY EMPLOYEES
Exhibit
10.1
MERISEL,
INC.
1997
STOCK AWARD AND INCENTIVE PLAN
FORM
OF RESTRICTED STOCK AGREEMENT
FOR
EXECUTIVES AND KEY EMPLOYEES
This
Restricted Stock Agreement (this “Agreement”)
is
dated as of [●] (the “Effective
Date”),
by
and between Merisel, Inc., a corporation organized under the laws of the State
of Delaware (the “Company”),
and
[●], residing at the address set forth on the signature page hereto (the
“Grantee”).
Any
capitalized terms not otherwise defined herein shall have the meaning set forth
in the Plan (as hereinafter defined).
R
E C
I T A L S
WHEREAS,
the Grantee is a key executive or key employee of the Company or one of its
subsidiaries (a “Subsidiary”) as of the Effective Date;
WHEREAS,
in accordance with the recommendation of the Compensation Committee of the
Board
of Directors of the Company dated November 17, 2006, as adopted by the Committee
and the Board, and pursuant to the Company’s 1997 Stock Award and Incentive Plan
(the “Plan”) the Board and the Committee, have determined that the Grantee
should be granted shares of the Company’s common stock (the “Common
Stock”)
according to the terms and conditions hereof and the Plan.
A
G R
E E M E N T
NOW
THEREFORE, in consideration of the promises and mutual covenants herein set
forth, and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto hereby mutually covenant and agree as
follows:
Section
1. Issuance
of Common Stock.
1.1 The
Company hereby grants to the Grantee, effective as of the Effective Date, an
aggregate of [●] shares of the Company’s Common Stock (the “Shares”) on the
terms and conditions of this Agreement and all other applicable terms and
conditions of the Plan.
1.2 Upon
receipt by the Company of a copy of this Agreement duly executed and completed
by the Grantee, the Company shall promptly instruct its transfer agent to issue
in the name of the Grantee duly executed certificate(s) evidencing the Shares
endorsed with the legends set forth in Section 4.4. The certificate(s)
evidencing the Shares shall be held in escrow by the Company according to the
provisions set forth in Section 3.1.
Section
2. Vesting
of Shares; Termination of Service; Forfeiture.
2.1 Vested
and Unvested Shares. As the Shares vest pursuant to the terms of this Agreement,
they are referred to herein as “Vested Shares” and, if they have not vested,
they are referred to herein as “Unvested Shares.” All of the Shares shall
initially be Unvested Shares.
2.2 No
Vesting Upon Execution. The Shares shall initially be Unvested
Shares.
2.3 Vesting
During Continued Employment; Termination of Employment with the Company. So
long
as the Grantee continues to be employed by the Company or a Subsidiary in good
standing and subject to other terms and conditions contained herein, the Grantee
shall acquire a vested interest in the Shares as follows:
[●]
2.4 Termination
for Cause and without Cause.
(a) Resignation
or Termination for Cause. In the event of the resignation of the Grantee or
any
termination by the Company or any Subsidiary for Cause (as defined in any
specific employment agreement entered into with the Grantee or the Plan, as
applicable), all Unvested Shares shall immediately be forfeited and the Company
shall have the right to obtain and transfer to its own name such forfeited
Shares without payment of any consideration. Such forfeited Unvested Shares
will
be further subject to the forfeiture provisions in Section 3.2 hereof.
(b) Termination
without Cause absent Change of Control. If no Change of Control (as defined
in
the Plan) has occurred, and the Grantee is terminated without cause prior to
any
Vesting Date, all Unvested Shares shall be immediately forfeited and the Company
shall have the right to obtain and transfer to its own name such forfeited
Shares without payment of any consideration. Such forfeited Unvested Shares
will
be further subject to the forfeiture provisions in Section 3.2 hereof.
2.5 Accelerated
Vesting; Termination following a Change of Control; Special Escrow and
Conditions of Forfeiture.
(a) Accelerated
Vesting following Change of Control. All Unvested Shares shall become Vested
Shares upon a Change of Control of the Company, as defined in the Plan, provided
the Grantee is employed by the Company or a Subsidiary at such date. Shares
vested due to the Change of Control shall be exchanged, if applicable, for
a
pro-rata share of the cash, securities, proceeds or other consideration received
by other shareholders of the Company in the Change of Control transaction (the
“Consideration”).
(b) Escrow
of
Change of Control Consideration; Risk of Forfeiture. All Shares, securities
or
Consideration allocable to Grantee’s Shares in the Change of Control shall be
held by the Company in a special Escrow Account (the “Special Escrow Account”)
for up to 180 days after the Change of Control occurs. During the 180 day
period, Grantee’s Shares or attributable Consideration shall be subject to
forfeiture in the event the Grantee resigns, is terminated for “cause” or leaves
the Company for any reason other than termination by the Company without cause
as described in Section 2.5(c). Grantee shall be entitled to release of his
or
her portion of the Escrow upon the earlier of his or her (i) termination without
cause by the Company or any successor as described in Section 2.5 (c) or (ii)
the 180th day after the Change of Control. The distribution of any forfeited
Shares or Consideration shall be determined by the Board of Directors as part
of
the Change of Control transaction.
(c) Termination
without Cause after Change of Control. In the event the Grantee’s employment by
the Company or a Subsidiary is terminated without Cause (as defined in the
Grantee’s employment agreement or the Plan, as applicable) after a Change of
Control, subject to the Grantee’s execution of a general release of claims
against the Company, its subsidiaries and affiliates and any acquiring entity
or
group (the “Company Group”) in a form reasonably satisfactory to the Company,
Grantee’s Shares or applicable Consideration will be released from Escrow and
distributed to the Grantee, effective as of such termination date.
2.6 Determination
of Termination Date of Grantee’s Employment. The determination of whether or not
a termination of employment of the Grantee by the Company or any Subsidiary
has
occurred, and the determination of the date of any such termination of
employment, shall be made by the Board or the Committee as defined in the Plan,
acting reasonably.
2.7 Stock
Dividends, Splits and Certain Reorganizations. If, from time to time during
the
term of this Agreement:
(a) there
is
any stock dividend, stock split or other change in the character or amount
of
any of the outstanding securities of the Company; or
(b) there
is
any consolidation, merger or sale of all, or substantially all, of the assets
of
the Company;
then,
in
such event, any and all new, substituted or additional securities or other
property to which the Grantee is entitled by reason of the Grantee's ownership
of the Shares, shall be immediately subject to this Agreement and be included
in
the word “Shares” for all purposes with the same force and effect as the Shares
presently subject to this Agreement.
Section
3. Escrow
of Shares Unvested Shares; Special Escrow upon Change of
Control.
3.1 Deposit
of Shares; Related Documentation. Upon execution of this Agreement, the Grantee
shall deliver and deposit with the Company as escrow holder (the “Escrow
Holder”) the share certificate representing the Unvested Shares, together with
the stock assignment duly endorsed in blank, attached hereto as Exhibit A.
The
Unvested Shares and stock assignment shall be held by the Escrow Holder, until
such time as
(a) such
Unvested Shares shall have become forfeited by the Grantee pursuant to this
Agreement or the Plan, or
(b) such
Unvested Shares shall have become Vested Shares.
3.2 Unvested
Shares forfeited by the Grantee; Forfeit After Change of Control. All Unvested
Shares forfeited by the Grantee pursuant to the terms of this Agreement or
according to the provisions of the Plan, shall revert to the Company, and the
Company shall become the legal and beneficial owner of such Unvested Shares,
and
all rights and interests therein or relating thereto. Upon the forfeiture of
any
Unvested Shares in accordance with the terms of this Agreement or the Plan,
the
Company shall have the right to obtain and transfer to its own name such
forfeited Unvested Shares without payment of any consideration, and the Company
shall be entitled to the return from the Grantee of any share certificate(s)
issued in respect of the forfeited Unvested Shares or the cancellation of any
book entry memo position maintained by the Company’s transfer agent and
registrar with respect to the Unvested Shares. Additionally, the Company shall
have the right, as Escrow Holder, to take all steps necessary to accomplish
the
transfer of such forfeited Unvested Shares to it, including but not limited
to
presentment of certificate(s) representing the Unvested Shares, together with
stock assignment(s) executed by the Grantee appropriately completed by the
Escrow Holder, to the Company’s transfer agent with irrevocable instructions to
transfer such Unvested Shares into the name of the Company. The Grantee hereby
appoints the Company, in its capacity as Escrow Holder, as his or her
irrevocable attorney-in-fact to execute in his or her name, acknowledge and
deliver all stock powers, stock assignments and other instruments as may be
necessary or desirable with respect to the Unvested Shares. In addition, the
Grantee shall immediately pay to the Company any proceeds from the prior sale
or
transfer of any forfeited Unvested Shares. Any Vested Shares or Consideration
forfeited by the Grantee within 180 days after a Change of Control shall be
released pursuant to the determination of the Board of Directors in the Change
of Control transaction documents.
3.3 Release
of Vested Shares from Escrow. When any Unvested Shares become Vested Shares,
or
upon release of any Shares or Consideration from the special Escrow established
upon a Change of Control, upon the Grantee’s written request to the Company, the
Company, as Escrow Holder, shall promptly cause a new certificate (if required)
to be issued for such Shares, release from escrow and deliver the certificate(s)
representing such Vested Shares or the applicable Consideration, to the Grantee
to the address indicated on the signature page hereto.
3.4 Grantee’s
Rights as Stockholder. Subject to the terms hereof, the Grantee shall have
all
the rights of a stockholder with respect to the Shares while they are held
in
escrow, including without limitation, the right to vote the Shares and, subject
to Section 2.5 of this Agreement, receive any dividends declared thereon. During
the period of any Special Escrow following a Change of Control, the Grantee
shall have all the rights of a stockholder with respect to any Change of Control
Consideration, including entitlement to any contingent or subsequent
Consideration.
3.5 Liability
of Escrow Holder. The Escrow Holder shall not be liable and the Grantee shall
hold the Escrow Holder harmless for any act the Escrow Holder may do or omit
to
do with respect to holding the Unvested Shares in escrow and while acting in
good faith and in the exercise of its judgment.
Section
4. Restriction
on Transfer; Investment Representation.
4.1 General
Restriction; No Assignment of Shares. Except as otherwise provided in Section
4.2 of this Agreement, the Grantee may not sell, transfer, assign, pledge,
hypothecate or otherwise dispose of any of the Unvested Shares, or any right
or
beneficial interest therein (collectively referred to as a “Transfer”) unless
the Unvested Shares have become Vested Shares, and the Grantee has been issued
a
certificate for such Vested Shares by the Company, and the Transfer is conducted
in accordance with the terms of this Agreement.
4.2 Permitted
Transfers. The Grantee may not Transfer any Vested Shares to any person or
entity unless the Transfer has been registered under the Securities Act of
1933
or the Company receives an opinion of counsel in form and substance satisfactory
to the Company that the Transfer of such Vested Shares is exempt from
registration under the Securities Act of 1933, as amended (the “Securities Act”)
and otherwise complies with federal and state securities laws (each such
transferee, a “Permitted Transferee”). The Grantee acknowledges and agrees, and
each Permitted Transferee shall, as a condition to Transfer any Vested Shares,
acknowledge and agree that neither the Company nor any agent of the Company
shall be under any obligation to recognize any Transfer of any of the Vested
Shares if, in the opinion of counsel for the Company, such transfer would result
in a violation by the Company of any federal or state law with respect to any
Transfer of such Vested Shares. Any attempt to Transfer or assign any Shares
by
the Grantee other than in accordance with this Agreement shall be void and
shall
have no effect.
4.3 Tax
Withholding; Compliance by Grantee. The Company is authorized to withhold from
any distribution of the Shares to the Grantee or any other payment made to
the
Grantee under this Agreement, amounts of withholding and other taxes due in
connection with the issuance of the Shares, and to take such other action as
the
Committee (as defined in the Plan) may deem advisable to enable the Company
and
the Grantee to satisfy obligations for the payment of withholding taxes and
other tax obligations relating to the Shares. The Grantee agrees that in the
event and to the extent the Company determines that it is not obligated to
withhold taxes payable by the Grantee with respect to the Shares but the Company
is later held liable due to any non-payment of taxes on the part of the Grantee,
the Grantee shall indemnify and hold the Company harmless from the amount of
any
payment made by it in respect of such liability.
4.4 Investment
Representation. The Grantee represents and warrants to the Company that the
Grantee (i) is acquiring the Shares for his own account for the purpose of
investment and not with a view to, or for sale in connection with, the
distribution of any such Shares, (ii) has no present intention of selling,
granting any participation in, or otherwise distributing all or any portion
the
Shares acquired hereunder, and (iii) does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person with respect to any of
the
Shares acquired hereunder.
4.5 Legends
on Certificates representing the Shares. The certificates representing the
Shares shall be endorsed with the following legends:
“THE
SECURITIES REPRESENTED BY THIS COMMON STOCK CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE SECURITIES ACT"), NOR
REGISTERED OR QUALIFIED UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE,
AND
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER
THE SECURITIES ACT AND REGISTERED OR QUALIFIED UNDER APPLICABLE STATE SECURITIES
OR BLUE SKY LAWS, OR AN EXEMPTION THEREFROM IS AVAILABLE.
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS
AND
OBLIGATIONS WITH RESPECT TO THE TRANSFER, PLEDGE, HYPOTHECATION OR DISTRIBUTION
THEREOF AS SET FORTH IN THAT CERTAIN RESTRICTED STOCK GRANT AGREEMENT DATED
AS
OF [●] WITH THE CORPORATION AND THE TERMS AND CONDITIONS OF THE 1997 STOCK AWARD
AND INCENTIVE PLAN, BOTH OF WHICH MAY BE REVIEWED AT THE PRINCIPAL PLACE OF
BUSINESS OF THE CORPORATION AND A COPY OF WHICH MAY BE OBTAINED FROM THE
CORPORATION WITHOUT CHARGE UPON WRITTEN REQUEST THEREFOR.”
The
Grantee agrees that the Company may instruct its transfer agent to impose
transfer restrictions on the Shares represented by certificates bearing the
legend referred to above to enforce the provisions of this Agreement and the
Company agrees to promptly do so.
Section
5. Miscellaneous.
5.1 Conditions
to Exercise of Rights. Exercise of the rights granted to the Company under
this
Agreement shall be subject to and conditioned upon, and the parties shall use
their best efforts to assist the Company in, compliance with applicable
laws.
5.2 No
Employment Contract. Nothing in this Agreement or the Plan shall confer upon
the
Grantee any right to continue in the employment of the Company or any Subsidiary
in his or her current or any other capacity for any period of time, or interfere
with or restrict in any way the rights of the Company or the Grantee, which
rights are hereby expressly reserved by each, to terminate the employment of
the
Grantee at any time for any reason whatsoever, with or without
Cause.
5.3 Agreement
Subject to Plan. This Agreement is made under the provisions of the Plan and
shall be interpreted in a manner consistent with it. Any provision in this
Agreement inconsistent with the Plan shall be superseded and governed by the
Plan. A copy of the Plan is available to the Grantee at the Company’s principal
executive office upon request and without charge. The Grantee has carefully
reviewed the Plan and understands the restrictions on the Shares.
5.4 Governing
Law; Jurisdiction and Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without
regard to principles of conflicts of laws, and shall be binding upon the heirs,
personal representatives, executors, administrators, successors and assigns
of
the parties.
5.5 Amendment.
Any provision of this Agreement may be amended and the observance thereof may
be
waived (either generally or in a particular instance and either retroactively
or
prospectively) only by the written consent of the Company and the
Grantee.
5.6 Entire
Agreement. This Agreement constitutes the full and entire understanding and
agreement among the parties with regard to the subject matter hereof, and
supersede all prior agreements and understandings with respect to the subject
matter hereof.
5.7 Assignment.
This Agreement and any and all rights, duties, obligations or interests
hereunder shall not be assignable or delegable by the Grantee. This Agreement
shall be binding upon, and inure to the benefit of, the parties hereto, any
successors to or assigns of the Company and the Grantee’s heirs and personal
representatives of the Grantee’s estate.
5.8 Authority
of the Committee. The Committee shall have full authority to interpret and
construe the terms of the Plan and this Agreement, unless the Agreement requires
for a particular determination to be made specifically by the Board. The
determination of the Committee as to any such interpretation or construction
shall be final, binding and conclusive.
5.9 Severability.
In the event one or more of the provisions of this Agreement should, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
5.10 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and
the same instrument.
[Signature
page following]
IN
WITNESS WHEREOF,
the
parties have duly executed this Agreement under seal as of the month, day
and
year first set forth above.
MERISEL,
INC.
By:________________________________
Name:
Title:
GRANTEE
__________________________________
[NAME]
[ADDRESS]
Consent
of Spouse
I
acknowledge that I have read the foregoing Restricted Stock Agreement (the
“Agreement”) and that I know of its contents. I am aware that by its provisions
all or part of the Shares granted to my spouse pursuant to the Agreement,
including my community property interest in such Shares, if any, are, in certain
circumstances subject to restrictions on transfer and forfeiture to Merisel,
Inc. I hereby agree that the Shares granted to my spouse pursuant to the
Agreement and my interest in them, if any, are subject to the provisions of
the
Agreement and that I will take no action at any time to hinder operation of,
or
violate, the Agreement.
| Date: _____________________________ | __________________________________ | ||
| Name: |
EXHIBIT
A
STOCK
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR
VALUE
RECEIVED and pursuant to that certain Restricted Stock Agreement effective
as of
[●] (the "Agreement") by and between Merisel, Inc., a Delaware corporation (the
"Company"), and the undersigned, the undersigned hereby sells, assigns and
transfers unto ____________________________________________________
_____________________________________________ (___________) shares of the common
stock of the Company standing in the undersigned's name on the books of the
Company represented by certificate No. __________ herewith, and does hereby
irrevocably constitute and appoint ___________________________________________
attorney to transfer the said stock on the books of the Company with full powers
of substitution in the premises.
Dated:
________________
| ______________________________ | |||
| Grantee [NAME] | |||