FIIC, INC. AND RESTRICTED STOCK PLAN RESTRICTED STOCK AWARD AGREEMENT (SUPER EXECUTIVE)
FIIC,
INC.
2005
STOCK OPTION, DEFERRED STOCK
AND
RESTRICTED STOCK PLAN
(SUPER
EXECUTIVE)
Participant
Name:___________________
This
AGREEMENT dated as of the ___ day of _______, 20__ between FIIC, Inc., a
Delaware corporation (the "Company") and ________________ (the
"Participant").
RECITALS
WHEREAS,
the Company has established the 2005 Stock Option, Deferred Stock and Restricted
Stock Plan (the "Plan") effective as of April 25, 2005, and
WHEREAS,
pursuant to the provisions of said Plan, the Administrator has granted to
the
Participant by action duly taken on ________ __, 20__, (the "Award Date")
a
restricted stock award (the "Restricted Stock Award") based upon the terms
and
conditions set forth herein.
NOW,
THEREFORE, in consideration of services rendered and to be rendered by the
Participant and the mutual promises made herein, the mutual benefits to be
derived therefrom and other good and valuable consideration, the parties
agree
as follows:
AGREEMENT
1. Grant.
Subject
to the terms of this Agreement, the Company grants to the Participant the
following:
Restricted
Stock Award:
__________ shares
of
Common Stock of the Company (the "Restricted Stock")
|
Price
(optional): $_____________ per
share
|
|
Release
of Company’s Repurchase Option
Schedule:
|
|
Number
of Shares
|
Expiration
Date of Company’s
Repurchase
Option
|
2.
Restricted
Stock.
(a) Restriction.
Subject to the provisions of the Plan, Participant is not permitted to sell,
transfer, pledge or assign the shares of Restricted Stock during the Restricted
Period.
(b)
Certificates
and Legend. Participant shall be issued a stock certificate in respect of
such
shares of Restricted Stock; and such certificate shall be registered in the
name
of Participant, and shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted Stock Award,
substantially in the following form:
“The
transferability of this certificate and the shares of stock represented hereby
are subject to the terms and conditions (including forfeiture) of the FIIC,
Inc.
2005 Stock Option, Deferred Stock and Restricted Stock Plan and a Restricted
Stock Award Agreement entered into between the registered owner and FIIC,
Inc.
Copies of such Plan and Agreement are on file in the offices of FIIC,
Inc.”
The
stock
certificates evidencing such shares shall be held in the custody of the Company
until the restrictions thereon shall have lapsed, and that, as a condition
of
any Restricted Stock Award, Participant shall have delivered a stock power,
endorsed in blank, relating to the Stock covered by such Award, a form of
which
is attached here to as Exhibit
A.
(c) Voting
Rights. Except as provided herein, Participant shall have all of the rights
of a
shareholder of the Company, including the right to vote the shares, and the
right to receive any dividends thereon during the Restricted
Period.
3.
Repurchase
Option
(a) In
the
event of any voluntary or involuntary termination of the Participant’s
employment by the Company or Participant, as applicable, for any or no reason,
including death or disability (a “Termination”) before all of the shares of
Restricted Stock are released from the Company’s repurchase option (see Section
4 below), the Company shall, upon the date of a Termination (as reasonably
fixed
and determined by the Company) have an irrevocable, exclusive option (the
“Repurchase Option”) for a period of ninety (90) days from such date to
repurchase all (but not less than all) of the shares of Restricted Stock
that
shall constitute the Unreleased Shares (defined herein as any of the shares
of
Restricted Stock that have not yet been released from the Repurchase Option)
at
such time, at the price paid by the Participant at the time of issuance (the
“Repurchase Price”);
2
(b) The
Repurchase Option shall be exercised by the Company by written notice to
the
Participant and, at the Company’s option, (i) by delivery to the Participant
with such notice of a check in the amount of the purchase price for the shares
of Restricted Stock being repurchased, (ii) by cancellation by the Company
of an
amount of the Participant’s indebtedness to the Company equal to the purchase
price for the shares of Restricted Stock being repurchased, or (iii) by a
combination of (i) and (ii) so that the combined payment and cancellation
of
indebtedness equals the aggregate Purchase Price. Upon delivery of such notice
and the payment of the purchase price of any of the ways described above,
the
Company shall become the legal and beneficial owner of the shares of Restricted
Stock being repurchased and all rights and interests therein or relating
thereto, and the Company shall have the right to retain and transfer to its
own
name the number of shares of Restricted Stock being repurchased by the
Company.
(c) Whenever
the Company shall have the right to repurchase shares of Restricted Stock
hereunder, the Company may designate and assign one or more employees, officers,
directors, or shareholders of the Company or other persons or organizations
to
exercise all or a part of the Company’s purchase rights under this Agreement and
purchase all or a part of such shares of Restricted Stock. If the fair market
value of the shares of Restricted Stock to be repurchased on the date of
such
designation or assignment (the “Repurchase FMV”) exceeds the aggregate
Repurchase Price of such shares of Restricted Stock, then each such designee
or
assignee shall pay the Company cash equal the difference between the Repurchase
FMV and the aggregate Repurchase Price of such shares of Restricted
Stock.
4. Release
of Shares From Repurchase Option
(a) Shares
of
Restricted Stock shall be released from Company’s Repurchase Option according to
the schedule set forth in Section 1 above; provided in each case that the
Participant has not ceased to be an employee of the Company prior to the
date of
any such release, but in which case the Participant shall get vesting credit
for
the number of days in the final month that the Employee is either an employee
or
director of or a consultant to the Company.
(b) Notwithstanding
anything set forth in Section 4(a) above, in the event, within twelve (12)
months after a Change of Control, the Participant’s employment terminates other
than (i) for Cause, (ii) voluntary termination by the Participant but such
resignation is not a result of a “Constructive Termination”, or (iii) death or
disability of the Participant, fifty percent (50%) of the Unreleased Shares
shall be released from the Company’s Repurchase Option upon the date of such
termination. For the purposes of this agreement, “Constructive Termination”
shall mean Employee’s voluntary termination, upon 30 days prior written notice
to the Company, following: (A) a material reduction or change in job duties,
responsibilities and requirements inconsistent with Employee’s position with the
Company and Employee’s prior duties, responsibilities and requirements; (B) any
reduction of Employee’s base compensation (other than in connection with a
general decrease in base salaries for most employees of the successor
corporation); or (C) Employee’s refusal to relocate to a facility or location
more than 75 miles from the Company’s current location.
3
For
the
purposes of the foregoing, a “Change of Control” shall have the meaning set
forth in Section 9(b) of the Plan. For purposes of this Agreement, “Cause” shall
mean (i) a material act of dishonesty in connection with the Participant’s
responsibilities as an employee of the Company; (ii) the Participant’s
conviction of, or plea of nolo contendere to, a felony or a crime involving
moral turpitude, (iii) the Participant’s gross misconduct which has a material
adverse effect on the Company, or (iv) the Participant’s consistent and willful
failure to perform his or her employment duties where such failure is not
cured
within 30 days after written notice to Participant by the Company.
5. Governing
Plan.
This
Agreement hereby incorporates by reference the Plan and all of the terms
and
conditions of the Plan as heretofore amended and as the same may be amended
from
time to time hereafter in accordance with the terms thereof, but no such
subsequent amendment shall adversely affect Participant’s rights under this
Agreement and the Plan except as may be required by applicable law. Participant
expressly acknowledges and agrees that the provisions of this Agreement are
subject to the Plan; the terms of this Agreement shall in no manner limit
or
modify the controlling provisions of the Plan, and in case of any conflict
between the provisions of the Plan and this Agreement, the provisions of
the
Plan shall be controlling and binding upon the parties hereto. Participant
also
hereby expressly acknowledges, represents and agrees as follows:
(a) Acknowledges
receipt of a copy of the Plan, a copy of which is attached hereto and by
reference incorporated herein, and represents that he/she is familiar with
the
terms and provisions of said Plan, and hereby accepts this Agreement subject
to
all the terms and provisions of said Plan.
(b) Agrees
to
accept as binding, conclusive and final all decisions or interpretations
of the
Administrator upon any questions arising under the Plan.
(c) Acknowledges
that he/she is familiar with Sections of the Plan regarding the issuance
of the
Restricted Stock.
6. Representations
and Warranties.
As a
condition to the issuance of any portion of shares of Restricted
Stock the
Company may require Participant receiving such shares to make any representation
and/or warranty to the Company as may, in the judgment of counsel to the
Company, be required under any applicable law or regulation, including but
not
limited to a representation and warranty that the shares are being acquired
only
for investment and without any present intention to sell or distribute such
shares if, in the opinion of counsel for the Company, such a representation
is
required under the Securities Act of 1933 or any other applicable law,
regulation or rule of any governmental agency. Participant hereby represents
to
the Company that the shares issuable pursuant to this Agreement are being
acquired only for investment and without any present intention to sell or
distribute such securities.
7. No
Enlargement of Employee Rights.
Nothing
in this Agreement shall be construed to confer upon Participant (if an employee)
any right to continued employment with the Company, any Parent or Subsidiary,
or
to restrict in any way the right of the Company, a Subsidiary or Parent to
terminate his/her employment. Participant acknowledges that in the absence
of an
express written employment agreement to the contrary, the Company may terminate
Participant’s employment with the Company at any time, with or without
cause.
4
8. Execution
and Delivery.
Participant acknowledges that Participant shall have no rights with respect
to
any Award granted by the Company unless and until Participant executes an
Award
Agreement and delivers it to the Company within sixty days of such award
(or
such other period as the Participant may specify after the Award
Date).
9. Withholding
of Taxes.
Participant authorizes the Company to withhold, in accordance with any
applicable law, from any compensation payable to him any taxes required to
be
withheld by federal, state or local law as a result of the grant of Restricted
Stock Award.
10. Laws
Applicable to Construction.
This
Agreement shall be construed and enforced in accordance with the laws of
the
State of California.
11. Agreement
Binding on Successors.
The
terms of this Agreement shall be binding upon the executors, administrators,
heirs, successors, transferees and assignees of the Participant.
12. Costs
of Litigation.
In any
action at law or in equity to enforce any of the provisions or rights under
this
Agreement or the Plan, the unsuccessful party to such litigation, as determined
by the court in a final judgment or decree, shall pay the successful party
or
parties all costs, expenses and reasonable attorneys' fees incurred by the
successful party or parties (including without limitation costs, expenses
end
fees on any appeals), and if the successful party recovers judgment in any
such
action or proceeding such costs, expenses and attorneys' fees shall be included
as part of the judgment.
13. Necessary
Acts.
The
Participant agrees to perform all acts and execute and deliver any documents
that may be reasonably necessary to carry out the provisions of this Agreement,
including but not limited to all acts and documents related to compliance
with
federal and/or state securities laws.
14. Counterparts.
For
convenience this Agreement may be executed in any number of identical
counterparts, each of which shall be deemed a complete original in itself
and
may be introduced in evidence or used for any other purpose without the
production of any other counterparts.
15. Invalid
Provisions.
In the
event that any provision of this Agreement is found to be invalid or otherwise
unenforceable under any applicable law, such invalidity or unenforceability
shall not be construed as rendering any other provisions contained herein
invalid or unenforceable, and all such other provisions shall be given full
force and effect to the same extent as though the invalid and unenforceable
provision was not contained herein.
5
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
above written. By Participant's execution of this Agreement, Participant
agrees
to the terms and conditions hereof and of the Plan.
|
FIIC,
Inc.
|
PARTICIPANT | |
|
By:
Name:
Title:
|
(Signature)
(Print
Name)
(Social
Security)
|
|
By
his or
her signature below, the spouse of the Participant, of such Participant
be
legally married as of the date of his execution of this Agreement, acknowledges
that he or she has read this Agreement and the Plan and is familiar with
the
terms and provisions thereof, and agrees to be bound by all the terms
and
conditions of said Agreement and said Plan document.
|
Spouse
|
|
| Dated: |
By
his or
her signature below the Participant represents that he or she is not legally
married as of the date of execution of this Agreement.
|
Participant
|
|
| Dated: |
6
EXHIBIT
A
STOCK
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR
VALUE RECEIVED,
the undersigned hereby sell, assign and transfer unto:
|
PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING
NUMBER OF ASSIGNEE
|
||
____________________________________________________________________________________
____________________________________________________________________________________
_______________________________________________)
Shares of the _________________________
Stock
of
the _______________________________________________________________
Corporation
standing
in ________________________________________ name(s) on the books of said
Corporation
represented
by certificate(s) No.
__________________________________________________________
herewith
and do hereby irrevocably constitute and appoint
______________________________________
_____________________________________________________________________________
attorney
to
transfer the said stock on the books of the within named Corporation with
full
power of substitute.
Dated
_____________________________________ _______________________________________
_______________________________________
THE
SIGNATURE(S) ON THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) ON THE
FACE
OF
THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT, OR
ANY
CHANGE.
7