TRIMAX CORPORATION PERFORMANCE STOCK AWARD AGREEMENT
EXHIBIT
4.2
TRIMAX
CORPORATION
2007
PERFORMANCE STOCK PLAN
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Employee:
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«Name»
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Number
of Shares :
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«TotalShares»
Shares
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Date
of Grant:
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<<Grant
Date>>
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Performance
Period (If Any):
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A
Period of __________ Days from the Date of Grant, unless sooner
terminated
by reason of death, disability or other termination of status as
a
Participant, as defined in this Agreement.
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Performance
Goals (If Any):
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See
Exhibit A.
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THIS
AWARD
AGREEMENT
(the
“Agreement”)
is
entered into effective as of the _______ day of __________, 200_ by and
between
Trimax Corporation,
a
Nevada corporation (the “Company”),
and
the individual designated above (the "Participant").
RECITALS
A. The
2007
Performance Stock Plan (the “Plan”)
was
adopted by the Company on May 7, 2007; and
B. The
Participant performs valuable services for the Company, a Subsidiary or a
Parent; and
C. As
of the
date hereof, the Board of Directors of the Company establishes the terms,
conditions, restrictions and limitations applicable to an Award and as provided
herein;
NOW,
THEREFORE,
the
parties agree to the terms and conditions herein, including the
recitals.
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PERFORMANCE STOCK PLAN
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1. Grant
of Performance Shares.
1.1 Award.
The
grant of Performance Shares under the Plan to a Participant by the Committee
pursuant to such terms, conditions, restrictions and limitations, if any, as
the
Committee may establish by this Award Agreement or otherwise.
1.2 Committee.
The
Board of Directors of the Company or the Committee appointed
by the Board to administer the Plan.
1.3 Employee. Any
person employed by or serving as an employee, officer or director of the
Employer or any Subsidiary of the Employer that is hereafter organized or
acquired by the Employer.
1.4 Consultant.
Any
natural person who provides bona fide services to the Employer that are not
in
connection with the offer or sale of securities in a capital-raising
transaction, and do not directly or indirectly promote or maintain a market
for
the Employer's securities (includes "Advisors").
1.5 Participant.
An
Employee or Consultant of the Company or its subsidiaries selected by the
Committee to participate in the Plan.
1.6 Performance
Goals.
The
performance criterion or criteria established by the Committee pursuant to
the
Plan.
1.7 Performance
Period.
That
period established by the Committee at the time Performance Shares are granted
within which the Participant must meet his or her Performance
Goals.
1.8 Performance
Share.
Any
grant pursuant to the Plan of a unit valued by reference to a designated number
of shares of common stock, which value may be paid to the Participant by
delivery or such property as the Committee shall determine, including cash,
common stock or any combination thereof.
1.9 Construction.
This
Agreement shall be construed in accordance and consistent with, and subject
to,
the provisions of the Plan (the provisions of which are incorporated herein
by
reference) and, 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.
1.10 Condition.
The
Award is conditioned on the Participant's execution of this Agreement. If this
Agreement is not executed by the Participant it may be canceled by the
Board.
2. Performance
Period.
An
Award
of Performance Shares is granted as of the first day of the Performance Period.
The Performance Period shall be as specified above, commencing on the date
of
grant. At the end of the Performance Period, the Performance Shares are
converted into common stock of the Company or cash or a combination of the
two
as specified herein. The Award may be forfeited or terminated, however, as
provided in the Plan or in Section 1.7 or Section 5 Hereof.
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PERFORMANCE STOCK PLAN
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3. Performance
Goals.
Performance
Goals, if any, are established by the Committee on or before the Date of ▇▇▇▇▇.
The Award shall vest with respect to the Performance Shares, on or after the
dates set forth above, subject to earlier termination of the Award as provided
in Section 1.7 and Section 5 hereof or in the Plan.
4.
Performance
Share Rights.
4.1
Participants may be required or may elect to defer the issuance of Performance
Shares or the settlement of Awards in cash.
4.2
Awards of Performance Shares may provide the Participant with dividends or
dividend equivalents and voting rights at the time of grant.
5. Termination
of Employment.
5.1 Termination
of Participant Due to Death.
If
the
Participant's employment is or services are terminated at any time due to the
death of the Participant, the Award shall, on the date of termination, be paid
in full, paid on an as earned basis or terminated, as determined by the
Committee. If paid, the Award shall be paid to the Participant's estate, or
to
such person or persons
who have acquired the right to receive the Award by bequest or by inheritance
or
by reason of the death of the Participant.
5.2 Termination
of Employment Due to Disability.
If
Participant's employment is or services are terminated by reason of a disability
(within the meaning of Section 22(e)(3) of the Code) and if the Participant
had
been in Continuous Status as an Employee or Consultant at all times between
the
date of grant of the Award and termination of his or her status as an Employee
or Consultant, the Award shall, on the date of termination, be paid in full,
paid
on
as
earned basis or terminated, as determined by the Committee.
5.3 Termination
of Employment for Other Reasons.
If
Participant's status as an Employee or Consultant is terminated by the
Participant at any time after the grant of an Award for any reason other than
death or disability, as provided in Sections 4.1 and 4.2, and not for "cause"
as
provided below, the Award shall be paid in full, paid on as earned basis or
is
terminated, as determined by the Committee, on the date of termination of
Participant's status as an Employee or Consultant.
If
Participant's status as an Employee is terminated for "cause" (such termination
being referred to as a "Termination for Cause") at any time by the Company
after
the grant of an Award by the Company, then the Award terminates on the date
of
termination of Participant's status as an Employee. For purposes of this Section
5.3, Termination for "cause" shall mean a termination due to objective evidence
of any of the following: (i) material dishonesty related to employment; (ii)
fraud; (iii) commission of a felony or a crime involving moral turpitude; (iv)
theft of Company property or intentional destruction of Company property without
good reason and causing significant damage; (v) physical attack resulting in
physical injury to a fellow employee or other individual; (vi) unsanctioned
intoxication at work; (vii) use of unlawful drugs at work; (viii) any form
of
substance abuse (including alcohol) to the extent that it significantly
impairs the performance of duties; or (ix) gross insubordination or gross
dereliction of duty.
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PERFORMANCE STOCK PLAN
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5.4 Employment
by Subsidiary.
For
purposes of this Section and Section 8, employment with the Company includes
employment with any Parent or Subsidiary of the Company and service as a
Director of the Company or any Parent or Subsidiary shall be considered
employment with the Company. A change of employment between the Company and
any
Parent or Subsidiary (or between Subsidiaries or between a Subsidiary and a
Parent) is not a termination of employment under this Agreement.
6. Transferability.
Awards
of
Performance Shares shall not be transferable or assignable other than: (i)
by
will or the laws of descent and distribution; (ii) by gift or other transfer
of
an Award to any trust or estate in which the original Award recipient or such
recipient's spouse or other immediate relative has a substantial beneficial
interest, or to a spouse or other immediate relative, provided that any such
transfer is permitted subject to Rule 16b-3 issued pursuant to the Securities
Exchange Act of 1934, as amended, as in effect when such transfer occurs and
the
Board does not rescind this provision prior to such transfer; or (iii) pursuant
to a qualified domestic relations order (as defined by the Code). However,
any
Award so transferred shall continue to be subject to all the terms and
conditions contained in the Award Agreement.
7. Restrictions
on the Awards; Restrictions on the Shares.
The
Award
may not be paid in common stock unless, in the opinion of counsel for the
Company, the issuance and sale of the common stock is exempt from registration
under the Securities Act of 1933, as amended, or any other applicable federal
or
state securities law, rule or regulation, or the common stock has been duly
registered under such laws. The Company shall not be required to register the
common stock issuable pursuant to an Award under any such laws. Unless the
common stock has been registered under all applicable laws, the Participant
shall represent, warrant and agree, as a condition to the issuance of the common
stock, that the shares issued are being received for investment only and without
a view to any sale or distribution of such shares and that such shares shall
not
be transferred or disposed of in any manner without registration under such
laws, unless it is the opinion of counsel for the Company that such a
disposition is exempt from such registration. The Participant acknowledges
that,
if required by law, an appropriate legend, in such form as the Company shall
determine, giving notice of the foregoing restrictions shall appear
conspicuously on all certificates evidencing the shares issued in exchange
for
Performance Shares.
The
Participant also acknowledges and agrees that, in connection with any public
offering of the Company's stock, upon request of the Company or the underwriters
managing any underwritten public offering of the Company's stock and making
such
request with the approval of the Company's Board of Directors, not to sell,
make
any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any of his or her shares without the prior written consent of the
Company or such underwriters, as the case may be, from the effective
date of such registration for so long as the Company or the underwriters may
specify, but in any event not to exceed 180 days.
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PERFORMANCE STOCK PLAN
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8.
No
Right To Continued Status As an Employee or Consultant.
Nothing
in this Agreement or the Plan shall be interpreted or construed to confer upon
the Participant any right with respect to continuance of status as an Employee
or Consultant by the Company or any Parent or Subsidiary, nor shall this
Agreement or the Plan interfere in any way with the right of the Company or
a
Parent or Subsidiary to terminate the Participant's employment or services
at
any time.
9. Adjustments
Upon Certain Events.
In
the
event of a change in capitalization, such as a stock split, the Committee shall
make appropriate adjustments to the number and class of shares or other stock
or
securities subject to the Award. The Committee's adjustment shall be made in
accordance with the provisions of Section 6(h) of the Plan and shall be
effective and final, binding and conclusive for all purposes of the Plan and
this Agreement.
Subject
to Section 6(j) of the Plan, upon a merger, consolidation, separation,
reorganization or other business combination involving the Company, the Award
shall be deemed earned. All amounts deferred pursuant to the Plan and any
accrued interest thereon shall be paid in cash within 10 days of the sale
transaction before the date of closing of any sale transaction or such earlier
date as the Committee may fix.
10. Withholding
of Taxes.
The
Company shall have the right to deduct from any distribution of cash to the
Participant an amount equal to the federal, state and local income taxes and
other amounts as may be required by law to be withheld (the "Withholdings
Taxes") with respect to the Award. If the Participant is entitled to receive
shares, the Participant shall pay the Withholdings Taxes (if any) to the Company
in cash prior to the issuance of such shares. In satisfaction of the
withholdings Taxes, the Participant may make a written election (the "Tax
Election"), which may be accepted or rejected in the discretion of the
Committee, to have withheld a portion of the shares issuable to him or her
based
upon the Award, having an aggregate Fair Market Value equal to the Withholdings
Taxes, provided that, if the Participant may be subject to liability under
Section 16(b) of the 1934 Act, the election must comply with the requirements
applicable to share transactions by such Participants.
11. Modification
of Agreement.
This
Agreement may be modified, amended, suspended or terminated, and any terms
or
conditions may be waived, only by a written instrument executed by the parties
hereto.
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12. 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 Holdings and shall continue in full
force in accordance with their terms.
13. Governing
Law.
The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of Nevada without giving effect to the
conflicts of laws principles thereof.
14. Successors
in Interest.
This
Agreement shall be binding upon, and inure to the benefit of, the Company and
its successors and assigns, and upon any person acquiring, whether by merger,
consolidation, reorganization, purchase of stock or assets, or otherwise, all
or
substantially all of the Company’s assets and business. This Agreement shall
inure to the benefit of the Participant’s heirs and legal representatives. All
obligations imposed upon the Participant and all rights granted to the Company
under this Agreement shall be final, binding and conclusive upon the
Participant’s heirs, executors, administrators and successors.
15. 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 Participant and the Company for all
purposes.
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PERFORMANCE STOCK PLAN
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IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date first above written.
| TRIMAX CORPORATION | |||
| By: | |||
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| Name: | |||
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| Title: | |||
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By
signing below, Participant hereby accepts the Award subject to all its terms
and
provisions and agrees to be bound by the terms and provisions of the Plan.
Participant hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board of Directors of the Company, and
of
the Committee responsible for administration of the Plan, upon any questions
arising under the Plan. Participant authorizes the Company to withhold,
in
accordance
with applicable law, from any compensation payable to him or her, any taxes
required to be withheld by federal, state or local law as a result of the grant,
existence or issuance of the Award or subsequent sale of the
shares.
| PARTICIPANT | |||
| Signature: | |||
| Name: |
«Name» |
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[EXHIBIT
FOLLOWS]
2007
PERFORMANCE STOCK PLAN
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EXHIBIT
A
PERFORMANCE
GOALS
2007
PERFORMANCE STOCK PLAN
8