EAGLE BROADBAND, INC. RESTRICTED STOCK AGREEMENT
Exhibit
10.21
EAGLE
BROADBAND, INC.
THIS
RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”), is made, effective as of
September 18, 2006 (hereinafter the “Date of Grant”), between Eagle
Broadband Inc.,
a Texas
corporation, (the “Company”), and ▇▇▇▇▇
▇▇▇▇▇▇
(the
“Employee”).
RECITALS
WHEREAS,
the Company has adopted the Eagle Broadband Inc. 2005 Employee Stock Option
Plan, as amended (the “Plan”), pursuant to which awards of restricted shares of
the Company’s Common Stock may be granted to persons including employees of the
Company; and
WHEREAS,
the Compensation Committee of the Board of Directors of the Company has
determined that it is in the best interests of the Company and its shareholders
to grant the restricted stock award provided for herein (the “Restricted Stock
Award”) to the Employee in connection with the Employee’s services to the
Company, such grant to be subject to the terms set forth herein.
NOW
THEREFORE, in consideration of the mutual covenants hereinafter set forth,
the
parties hereto agree as follows:
1. Incorporation
by Reference, Etc.
The
provisions of the Plan are hereby incorporated herein by reference. Except
as
otherwise expressly set forth herein, this Agreement shall be construed in
accordance with the provisions of the Plan and any capitalized terms not
otherwise defined in this Agreement shall have the definitions set forth in
the
Plan. The Compensation Committee of the Board of Directors shall have final
authority to interpret and construe the Plan and this Agreement and to make
any
and all determinations under them, and its decision shall be binding and
conclusive upon the Employee and his legal representative in respect of any
questions arising under the Plan or this Agreement.
2. Grant
of Restricted Stock Award.
The
Company hereby grants on the Date of Grant to the Employee a Restricted Stock
Award consisting of 75,000 shares of Common Stock (hereinafter called the
“Restricted Shares”), on the terms and conditions set forth in this Agreement
and as otherwise provided in the Plan. The Restricted Shares shall vest in
accordance with Section 3(a) hereof.
3. Terms
and Conditions.
(a)
Vesting.
Except
as otherwise provided in the Plan and this Agreement, and contingent upon the
Employee’s continued employment with the Company, the Restricted Shares shall
vest and become non-forfeitable as follows:
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(i)
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15,000
shares upon the “light up” of the Company’s super head-end in Miami,
Florida, no later than October 1, 2006. The term “light up” shall mean
that a minimum of 100 channels of content are being transmitted to
the NAP
of Americas facility in Miami.
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(ii)
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7,500
shares upon the execution of a sales contract between the Company
and a
new IPTV customer no later than November 1,
2006.
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(iii)
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7,500
shares upon the execution of a sales contract between the Company
and a
new IPTV customer no later than December 1,
2006.
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(iv)
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7,500
shares upon the execution of a sales contract between the Company
and a
new IPTV customer no later than January 1,
2007.
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(v)
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7,500
shares upon the execution of a sales contract between the Company
and a
new IPTV customer no later than February 1,
2007.
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(vi)
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15,000
shares upon the attainment of the first quarter revenue target for
the
IPTV division in the Company’s FY 2007 Annual Operating Plan. Attainment
shall be based on the revenues reported for the IPTV division in
the
Company’s accounting records. The shares shall be considered vested and
non-forfeitable (if such revenue target is attained) on the date
the
accounting records for the first quarter are deemed final by the
Corporate
Controller for the Company.
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(vii)
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15,000
shares upon the attainment of the second quarter revenue target for
the
IPTV division in the Company’s FY 2007 Annual Operating Plan. Attainment
shall be based on the revenues reported for the IPTV division in
the
Company’s accounting records. The shares shall be considered vested and
non-forfeitable (if such revenue target is attained) on the date
the
accounting records for the second quarter are deemed final by the
Corporate Controller for the
Company.
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Each
date
on which each of the above-described events occurs or is deemed to have occurred
shall be referred to herein as a “Vesting Date.” In the event any of the
above-described events does not occur by the dates set forth above, the
Restricted Shares associated with such event shall be forfeited and returned
to
the Company as authorized and unissued shares.
(b)
Taxes.
The
Employee shall pay to the Company promptly upon request, and in any event at
the
time the Employee recognizes taxable income in respect of the Restricted Stock
Award, an amount equal to the taxes, if any, the Company determines it is
required to withhold under applicable tax laws with respect to the Restricted
Shares. Such payment shall be made in the form of cash.
(c)
Certificates.
Certificates evidencing the Restricted Shares shall be issued by the Company
and
shall be registered in the Employee’s name on the stock transfer books of the
Company promptly after the date hereof, but shall remain in the physical custody
of the Company or its designee at all times prior to, in the case of any
particular Restricted Shares, the applicable Vesting Date. As a condition to
the
receipt of this Restricted Stock Award, the Employee shall deliver to the
Company a stock power, duly endorsed in blank, relating to the Restricted
Shares.
(d) Effect
of Termination of Employment.
Unvested Restricted Shares shall be forfeited upon the Employee’s cessation of
employment prior to a Vesting Date.
(e) Rights
as a Stockholder; Dividends.
The
Employee shall be the record owner of the Restricted Shares unless and until
such shares are forfeited pursuant to this Agreement, and as record owner shall
be entitled to all rights of a common stockholder of the Company, including,
without limitation, voting rights, if any, with respect to the Restricted
Shares; provided that any cash or in-kind dividends paid with respect to
unvested Restricted Shares shall be withheld by the Company and shall be paid
to
the Employee, without interest, only when, and if, such Restricted Shares shall
become vested. As soon as practicable following the vesting of any Restricted
Shares, certificates for such vested Restricted Shares and any cash dividends
or
in-kind dividends credited to the Employee’s account with respect to such
Restricted Shares shall be delivered to the Employee or the Employee’s
beneficiary along with the stock power relating thereto.
(f) Restrictive
Legend.
All
certificates representing Restricted Shares shall have affixed thereto a legend
in substantially the following form, in addition to any other legends that
may
be required under federal or state securities laws:
The
transferability of this certificate and the shares of Stock represented by
it is
restricted by and subject to the terms and conditions (including conditions
of
forfeiture) contained in the Eagle Broadband, Inc. 2005 Employee Stock Option
Plan and an agreement entered into between the registered owner and the Company.
A copy of the Plan and agreement is on file in the office of the Secretary
of
the Company.
(g) Transferability.
The
Restricted Shares may not at any time prior to the Vesting Date (as to any
particular Restricted Share) be assigned, alienated, pledged, attached, sold
or
otherwise transferred or encumbered by the Employee and any such purported
assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall
be void and unenforceable against the Company; provided, that the designation
of
a beneficiary shall not constitute an assignment, alienation, pledge,
attachment, sale, transfer or encumbrance.
4. Miscellaneous.
(a) Notices.
Any
notice, consent, request or other communication made or given in accordance
with
this Agreement shall be in writing and shall be deemed to have been duly given
when actually received or, if mailed, three days after mailing by registered
or
certified mail, return receipt requested, or one business day after mailing
by a
nationally recognized express mail delivery service with instructions for
next-day delivery, to those persons listed below at their following respective
addresses or at such other address or person’s attention as each may specify by
notice to the others:
To
the
Company:
Eagle
Broadband, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Counsel
To
the
Employee:
The
most
recent address for the Employee in the records of the Company. The Employee
hereby agrees to promptly provide the Company with written notice of any change
in the Employee’s address for so long as this Agreement remains in
effect.
(b) Bound
by Plan.
By
signing this Agreement, the Employee acknowledges that he has received a copy
of
the Plan and has had an opportunity to review the Plan and agrees to be bound
by
all the terms and provisions of the Plan.
(c) Beneficiary.
The
Employee may file with the Company a written designation of a beneficiary on
such form as may be prescribed by the Company and may, from time to time, amend
or revoke such designation. If no designated beneficiary survives the Employee,
the executor or administrator of the Employee’s estate shall be deemed to be the
Employee’s beneficiary.
(d) Successors.
The
terms of this Agreement shall be binding upon and inure to the benefit of the
Company, its successors and assigns, and of the Employee and the beneficiaries,
executors, administrators, heirs and successors of the Employee.
(e) Entire
Agreement.
This
Agreement contains the entire agreement and understanding of the parties hereto
with respect to the subject matter contained herein and supersedes all prior
communications, representations and negotiations in respect thereto. No change,
modification or waiver of any provision of this Agreement shall be valid unless
the same be in writing and signed by the parties hereto.
(f) Governing
Law; Consent to Jurisdiction.
This
agreement shall be governed by and construed in accordance with the laws of
the
State of Texas applicable to agreements made and to be wholly performed within
that state. Any action to enforce this agreement must be brought in a court
situated in, and the parties hereby consent to the jurisdiction of, courts
situated in ▇▇▇▇▇▇ County, Texas. Each party hereby waives the rights to claim
that any such court is an inconvenient forum for the resolution of any such
action.
(g) JURY
TRIAL WAIVER.
THE
PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL IN THE EVENT
ANY
ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT IS LITIGATED OR HEARD
IN ANY COURT.
(h) Headings.
The
headings of the Sections hereof are provided for convenience only and are not
to
serve as a basis for interpretation or construction, and shall not constitute
a
part, of this Agreement.
(i) Signature
in Counterparts.
This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same
instrument. The parties hereto confirm that any facsimile copy of another
party’s executed counterpart of this Agreement (or its signature page thereof)
will be deemed to be an executed original thereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement.
| EAGLE BROADBAND, INC. |
EMPLOYEE
|
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| By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Name: ▇▇▇▇▇ ▇▇▇▇▇ | ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: President and CEO |