FREEDOM HOLDING CORP. RESTRICTED STOCK GRANT AGREEMENT
Exhibit 99.02
THIS AGREEMENT is made as
of ________________ ,
20__ (the “Date of
Grant”), between Freedom
Holding Corp., a Nevada corporation (the “Company”),
and ____________________ (the “Grantee”).
WHEREAS, the Company has adopted the Freedom
Holding Corp. 2018 Equity Incentive Plan (the
“Plan”)
in order to provide additional incentive to certain employees,
consultants, directors and officers of the Company and its
Subsidiaries; and
WHEREAS, the Board has determined to grant to the
Grantee a Grant of shares of the Company’s Common Stock
subject to restrictions stated herein (“Shares of Restricted
Stock”) to encourage the
Grantee’s efforts toward the continuing success of the
Company.
NOW,
THEREFORE, the parties hereto agree as follows:
1. Grant of Restricted
Stock.
(a) The Company hereby grants to the Grantee an
award of Shares
of Restricted Stock (the “Grant”).
The Shares of Restricted Stock granted pursuant to the Grant shall
be issued in certificated form in the name of the Grantee as soon
as reasonably practicable after the Date of Grant and shall be
subject to the execution and return of this Agreement by the
Grantee (or the Grantee’s estate, if applicable) to the
Company as provided in Section 9 hereof.
(b)
This Agreement shall be construed in accordance and consistent
with, and subject to, the provisions of the Plan (the provisions of
which are hereby incorporated by reference), a copy of which has
been provided to the Grantee and which the Grantee acknowledges
having received and reviewed. Any conflict between this Agreement
and the terms of a written employment agreement for the Optionee
that has been approved, ratified or confirmed by the Board shall be
decided in favor of the provisions of such employment
agreement. Except as otherwise expressly set forth
herein, the capitalized terms used in this Agreement shall have the
same definitions as set forth in the Plan.
2. Restrictions on
Transfer.
The Shares of Restricted Stock issued under this
Agreement may not be sold, transferred or otherwise disposed of and
may not be pledged or otherwise hypothecated until all restrictions
on such Restricted Stock shall have lapsed in the manner provided
in Section 3, 4 or 5 hereof. Any attempt to transfer or
otherwise dispose of any Shares of Restricted Stock in
contravention of the restrictions set forth herein shall be null
and void and without effect.
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3. Lapse of Restrictions
Generally.
Except
as provided in Sections 4, 5 and 6 hereof, one-______ (1/_) of the
number of Shares of Restricted Stock issued hereunder (rounded down
to the nearest whole Share, if necessary) shall vest, and the
restrictions with respect to such Restricted Stock shall lapse, on
each of the first _______ (_) anniversaries of the Date of
Grant.
4. Effect of Certain
Terminations of Employment.
If
the Grantee’s employment terminates as a result of the
Grantee’s death or total and permanent disability as
determined by the Board (“Disability”), or if
Grantee’s employment with the Company or its Subsidiaries is
terminated by the Company or its Subsidiaries without cause on or
after the Date of Grant, all Shares of Restricted Stock which have
not become vested in accordance with Section 3 or 5 hereof shall
vest, and the restrictions on such Restricted Stock shall lapse, as
of the date of such termination.
For
purposes of this Agreement, “cause” shall mean, (i) on
account of fraud, embezzlement or other unlawful or tortious
conduct, whether or not involving or against the Company or any
affiliate, (ii) for violation of a policy of the Company or any
affiliate, or (iii) for serious and willful acts or misconduct
detrimental to the business or reputation of the Company or any
affiliate.
5. Effect of Corporate
Change.
In
the event of a Corporate Change at any time on or after the Date of
Grant, all Shares of Restricted Stock which have not become vested
in accordance with Section 3 or 4 hereof shall vest, and the
restrictions on such Restricted Stock shall lapse
immediately.
6. Forfeiture of
Restricted Stock.
In
addition to the circumstance described in Section 9(a) hereof, any
and all Shares of Restricted Stock which have not become vested in
accordance with Section 3, 4 or 5 hereof shall be forfeited and
shall revert to the Company upon:
(i)
the termination by the Grantee, the Company or its Subsidiaries of
the Grantee’s employment for any reason other than those set
forth in Section 4 hereof prior to such vesting; or
(ii)
the commission by the Grantee of an Act of Misconduct prior to such
vesting.
For purposes of this Agreement, an “Act of
Misconduct” shall mean
the occurrence of one or more of the following events: (x) the
Grantee uses for profit or discloses to unauthorized persons,
confidential information or trade secrets of the Company or any of
its Subsidiaries, (y) the Grantee breaches any contract with or
violates any fiduciary obligation to the Company or any of its
Subsidiaries, or (z) the Grantee engages in unlawful trading in the
securities of the Company or any of its Subsidiaries or of another
company based on information gained as a result of that
Grantee’s employment with, or status as a director to, the
Company or any of its Subsidiaries.
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7. Delivery of Restricted
Stock.
(a) Certificates representing the Shares of
Restricted Stock issued pursuant to Section 1 hereof shall remain
in the custody of the Company subject to the lapse on restrictions
provided in Sections 3, 4 or 5 hereof. Any Shares of
Restricted Stock forfeited pursuant to this Agreement shall be
forfeited and revert to the Company without payment of any
consideration by the Company, and neither the Grantee nor any of
the Grantee’s successors, heirs, assigns or personal
representatives shall thereafter have any further rights or
interests in such Shares. If certificates for any such Shares of
Restricted Stock shall have been delivered to the Grantee (or
his/her legatees or personal representative), such certificates
shall be returned to the Company, complete with any necessary
signatures or instruments of transfer to the Company for
cancelation.
(b)
Except as otherwise provided in Section 7(c) hereof, a certificate
representing Shares of Restricted Stock for which the restrictions
have lapsed pursuant to Section 3, 4 or 5 hereof shall be delivered
to the Grantee as soon as practicable following the date on which
the restrictions on such Restricted Stock have lapsed, free of all
restrictions hereunder.
(c)
Shares of Restricted Stock in respect of which the restrictions
have lapsed upon the Grantee’s death pursuant to Section 4
hereof or, if requested by the executors or administrators of the
Grantee’s estate upon such lapse of restrictions, a stock
certificate with respect to such Shares of Restricted Stock, shall
be delivered to the executors or administrators of the
Grantee’s estate as soon as practicable following the
Company’s receipt of notification of the Grantee’s
death in a form acceptable to Company legal counsel, free of all
restrictions hereunder.
8. Dividends and Voting
Rights.
Subject to restrictions set forth in the Plan, and
Section 2 and Section 9(a) hereof, upon issuance of the Shares of
Restricted Stock, the Grantee shall have all of the rights of a
stockholder with respect to such Common Stock, including the right
to vote the Common Stock and to receive all dividends or other
distributions paid or made with respect thereto,
provided,
however, that
dividends paid, if any, with respect to Shares of Restricted Stock
which have not vested at the time of the dividend payment shall be
held in the custody of the Company and shall be subject to the same
restrictions that apply to the corresponding Shares of Restricted
Stock.
9. Execution of Grant
Agreement.
(a) The Shares of Restricted Stock granted to the
Grantee pursuant to the Grant shall be subject to the
Grantee’s execution and return of this Agreement to the
Company or its designee (including by electronic means, if so
provided) no later than __________ __, 20__ (the
“Grantee Return
Date”); provided that if
the Grantee dies before the Grantee Return Date, this requirement
shall be deemed to be satisfied if the executor or administrator of
the Grantee’s estate executes and returns this Agreement to
the Company or its designee no later than ninety (90) days
following the Grantee’s death (the “Executor Return
Date”). If this Agreement
is not so executed and returned on or prior to the Grantee Return
Date or the Executor Return Date, as applicable, the Shares of
Restricted Stock evidenced by this Agreement shall be forfeited,
and neither the Grantee nor the Grantee’s heirs, executors,
administrators and successors shall have any rights with respect
thereto.
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(b)
If this Agreement is so executed and returned on or prior to the
Grantee Return Date or the Executor Return Date, as applicable, all
dividends and other distributions paid or made with respect to the
Shares of Restricted Stock granted hereunder prior to such Grantee
Return Date or Executor Return Date shall be treated in the manner
provided in Section 8 hereof.
10. No Right to Continued
Employment.
Nothing
in this Agreement or the Plan shall interfere with or limit in any
way the right of the Company or its Subsidiaries to terminate the
Grantee’s employment, nor confer upon the Grantee any right
to continuance of employment by the Company or its Subsidiaries or
continuance of service as a Board member.
11. Withholding of
Taxes.
Prior to the delivery to the Grantee (or the
Grantee’s estate, if applicable) of a stock certificate with
respect to shares of Restricted Stock in respect of which all
restrictions have lapsed, the Grantee (or the Grantee’s
estate) shall pay to the Company the federal, state and local
income taxes and other amounts as may be required by law to be
withheld by the Company (the “Withholding
Taxes”) with respect to
such Restricted Stock. By executing and returning this Agreement in
the manner provided in Section 9 hereof, the Grantee (or the
Grantee’s estate) shall be deemed to elect to have the
Company withhold a portion of such Restricted Stock having an
aggregate Fair Market Value equal to the Withholding Taxes in
satisfaction of the Withholding Taxes, such election to continue in
effect until the Grantee (or the Grantee’s estate) notifies
the Company before such delivery that the Grantee (or the
Grantee’s estate) shall satisfy such obligation in cash, in
which event the Company shall not withhold a portion of such
Restricted Stock as otherwise provided in this Section 11. If
Grantee is exempt from tax withholding requirements, Grantee will
provide the Company such information and documentation as the
Company may request to document Grantee’s Withholding Tax
exempt status.
12. Grantee’s
Representations, Warranties and Covenants.
(a) Grantee represents and warrants that he or she
is acquiring the Shares of Restricted Stock solely for his or her
own account for investment and not with a view to, or for sale in
connection with, any distribution thereof. Grantee agrees that he
or she will not, directly or indirectly, offer, transfer, sell,
pledge, hypothecate or otherwise dispose of any of the Shares of
Restricted Stock (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of any Shares of Restricted
Stock), or any interest therein or any rights relating thereto,
except in compliance with the Securities Act of 1933, as amended
(the “Securities
Act”), and the rules and
regulations of the Securities and Exchange Commission (the
“Commission”)
thereunder, and in compliance with all applicable state
or non-U.S. securities or “blue sky” laws.
Grantee further understands, acknowledges and agrees that none of
the Shares of Restricted Stock may be transferred, sold, pledged,
hypothecated or otherwise disposed of unless such disposition is in
compliance with the applicable provisions of the Plan and this
Agreement.
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(b)
Grantee acknowledges that any certificate evidencing the Shares of
Restricted Stock shall bear the following legend prior to the lapse
of any outstanding restrictions
THIS
CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT
TO THE TERMS AND CONDITIONS, INCLUDING FORFEITURE PROVISIONS AND
RESTRICTIONS AGAINST TRANSFER (THE “RESTRICTIONS”),
CONTAINED IN THE FREEDOM HOLDING CORP. 2018 EQUITY INCENTIVE PLAN,
AND ANY AGREEMENTS ENTERED INTO BETWEEN THE REGISTERED OWNER AND
THE COMPANY. ANY ATTEMPT TO DISPOSE OF THESE SHARES IN
CONTRAVENTION OF THE RESTRICTIONS, INCLUDING BY WAY OF SALE,
ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHERWISE, SHALL BE
NULL AND VOID AND WITHOUT EFFECT.
(c)
Grantee represents and warrants that, as of the date hereof, he or
she is an officer, employee or director of the Company or a
Subsidiary.
(d)
Grantee agrees that the obligation of the Company to issue Shares
of Restricted Stock shall also be subject, as a condition
precedent, to compliance with applicable provisions of the
Securities Act, the Securities Exchange Act of 1934, as amended,
state on non-U.S. securities or corporation laws, rules and
regulations under any of the foregoing and applicable requirements
of any securities exchange upon which the Company’s Common
Stock may be listed.
13. Waiver of Repurchase
Option and Right of First Refusal.
The
parties hereby waive any Repurchase Option or Right of First
Refusal to which the Company may be entitled pursuant to Section
6.8 of the Plan.
14. No Advice Regarding
Grant.
Grantee
is hereby advised to consult with his or her own tax, legal and/or
investment advisors with respect to any advice Grantee may
determine is needed or appropriate with respect to the Shares of
Restricted Stock (including, without limitation, to determine the
foreign, state, local, estate and/or gift tax consequences with
respect to the Grant, the advantages and disadvantages of making an
election under Section 83(b) of the U.S. Internal Revenue Code with
respect to the Grant, and the process and requirements for such an
election). Neither the Company nor any of its officers, directors,
affiliates or advisors makes any representation (except for the
terms and conditions expressly set forth in this Agreement) or
recommendation with respect to the Grant or the making of an
election under Section 83(b) of the Code with respect to the Grant.
In the event the Grantee desires to make an election under Section
83(b) of the Code with respect to the Grant, it is the
Grantee’s sole responsibility to do so timely. Except for the
withholding rights set forth in Paragraph 11 above, the Grantee is
solely responsible for any and all tax liability that may arise
with respect to the Grant.
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15. Modification of
Agreement.
This
Agreement may be modified, amended, suspended or terminated, and
any terms or conditions may be waived, but only by a written
instrument executed by the parties hereto.
16. Severability.
Should
any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the
remaining provisions of this Agreement shall not be affected by
such holding and shall continue in full force in accordance with
their terms.
17. Governing
Law.
The
validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Utah
without giving effect to the conflicts of laws principles
thereof.
18. Successors in
Interest.
This
Agreement shall inure to the benefit of and be binding upon any
successor to the Company. This Agreement shall inure to the benefit
of the Grantee’s legal representatives. All obligations
imposed upon the Grantee and all rights granted to the Company
under this Agreement shall be binding upon the Grantee’s
heirs, executors, administrators and successors.
19. Resolution of
Disputes.
Any
dispute or disagreement which may arise under, or as a result of,
or in any way relate to, the interpretation, construction or
application of this Agreement shall be determined by the Board. Any
determination made hereunder shall be final, binding and conclusive
on the Grantee, the Grantee’s heirs, executors,
administrators and successors, and the Company and its Subsidiaries
for all purposes.
20. Entire
Agreement.
This
Agreement and the terms and conditions of the Plan constitute the
entire understanding between the Grantee and the Company and its
Subsidiaries, and supersede all other agreements, whether written
or oral, with respect to the Grant.
21. Headings.
The
headings of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.
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22. Counterparts.
This
Agreement may be executed simultaneously in two or more
counterparts, each of which shall constitute an original, but all
of which taken together shall constitute one and the same
agreement.
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By:
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Timur Turlov, Chief Executive Officer
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GRANTEE
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By:
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Name:
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