1. Grant
of Restricted Stock.
The
Corporation hereby grants to Grantee, and Grantee hereby accepts the number
of
shares of Restricted Stock set forth in the Notice of Grant.
2. Stockholder
Rights.
Until
such time as all or any part of the Restricted Stock is forfeited to the
Corporation under this Agreement, if ever, Grantee (or any successor in
interest) shall have the rights of a stockholder (including voting rights)
with
respect to the Restricted Stock that has been issued, including the Restricted
Stock that has been issued, but not yet vested, subject, however, to the
transfer restrictions of Section 3.
3. Vesting
of Restricted Stock.
(a) The
shares of Restricted Stock shall be restricted and subject to forfeiture
pursuant to Section 4 until vested pursuant to this Section 3 or Section
6(b).
The shares of Restricted Stock shall vest, and no longer be subject to
forfeiture, (such shares of Restricted Stock becoming “Vested
Shares”)
in
accordance with the vesting schedule set forth in the Notice of Grant. All
shares of Restricted Stock which have not become Vested Shares are hereinafter
sometimes referred to as “Nonvested
Shares.”
(b) The
Grantee acknowledges that the vesting of the foregoing shares of Restricted
Stock may create significant income tax liability to the Grantee and has
reviewed and understands Section 8 of this Agreement.
(c) Nonvested
Shares may not be sold, transferred, assigned, pledged, or otherwise disposed
of, directly or indirectly.
4. Forfeiture
of Shares.
Except
as provided for accelerated vesting in the Notice of Grant, at such time
as
Grantee employment or other relationship with the Corporation ceases for
any
reason, including death or disability, then, in such event, any Nonvested
Shares
shall be automatically forfeited to the Corporation unless the Corporation
otherwise notifies the Grantee. Upon notice from the Corporation of such
forfeiture, the Grantee shall immediately return to the Corporation any stock
certificate that evidences Nonvested Shares and shall execute any and all
such
documents and instruments to allow the Corporation to reacquire the forfeited
shares.
5. Legend.
All
stock certificates evidencing the Nonvested Shares shall be imprinted with
a
legend substantially as follows:
“THE
SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
AGAINST TRANSFER AND FORFEITURE, AS SET FORTH IN A RESTRICTED STOCK GRANT
AGREEMENT DATED FEBRUARY 1, 2007. TRANSFER OF THESE SHARES MAY BE MADE ONLY
IN
COMPLIANCE WITH THE PROVISIONS OF SAID AGREEMENT, A COPY OF WHICH IS ON FILE
AT
THE PRINCIPAL OFFICE OF THE CORPORATION.”
6. Recapitalizations,
Exchanges, Mergers, Etc.
(a) The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to any and all shares of capital stock of the Corporation or
successor of the Corporation which may be issued in respect of, in exchange
for,
or in substitution for the Restricted Stock by reason of any stock dividend,
split, reverse split, combination, recapitalization, reclassification, merger,
consolidation or otherwise which does not terminate this Agreement. Except
as
otherwise provided herein, this Agreement is not intended to confer upon
any
other person except the parties hereto any rights or remedies hereunder.
In
addition, without limiting the accelerated vesting provision contained in
the
Notice of Grant, in the event of a business combination, sale of all or
substantially all of the Corporation’s assets, recapitalization or similar
event, the Board of Directors of the Corporation shall have the right to
make an
equitable adjustment to the terms of this Agreement and to provide for
substitute property (including cash or other securities) in lieu of, or in
exchange for, the Restricted Stock granted hereunder.
(b) Without
limiting the accelerated vesting provision contained in the Notice of Grant,
any
adjustments made under this Section 6 will be made by the Board of Directors,
whose determination as to what adjustments, if any, will be made and the
extent
thereof will be final, binding and conclusive. No fractional shares will
be
issued on account of any such adjustments.
7. No
Employment Contract Created.
The
issuance of the shares of Restricted Stock shall not be construed as granting
to
Grantee any right with respect to continuance of employment or any other
business relationship by the Corporation or any of its Subsidiaries. The
right
of the Corporation or any of its Subsidiaries to terminate at will Grantee's
employment or terminate a business relationship with the Grantee at any time
(whether by dismissal, discharge or otherwise), with or without cause, is
specifically reserved, subject to any other written employment or other
agreement to which the Corporation and Grantee may be a party.
8. Section
83(b) Election.
Grantee
understands that under Section 83 of the Internal Revenue Code of 1986, as
amended (the “Code”),
the
excess of the fair market value of the shares of Restricted Stock on the
date
any forfeiture restrictions applicable to such shares of Restricted Stock
lapse
over the purchase price paid for such shares of Restricted Stock will be
reportable as ordinary income at that time. Grantee understands, however,
that
Grantee may elect to be taxed at the time the shares of Restricted Stock
are
acquired hereunder, rather than when and as such shares of Restricted Stock
cease to be subject to such forfeiture restrictions, by filing an election
under
Section 83(b) of the Code with the Internal Revenue Service within thirty
(30)
days after the date of this Agreement. GRANTEE ACKNOWLEDGES THAT IT IS GRANTEE'S
SOLE RESPONSIBILITY, AND NOT THE CORPORATION'S, TO FILE A TIMELY ELECTION
UNDER
SECTION 83(b), EVEN IF GRANTEE REQUESTS THE CORPORATION OR ITS REPRESENTATIVES
TO MAKE THIS FILING ON GRANTEE’S BEHALF.
9. Tax
Witholding.
The
Corporation shall be entitled to withhold from Grantee’s compensation any
amounts necessary to satisfy applicable tax withholding with respect to the
grant and vesting of the shares of Restricted Stock.
10. Interpretation.
The
shares of Restricted Stock are being issued pursuant to the terms of the
Employment Agreement, and shall in all respects be interpreted in accordance
therewith.
11. Notices.
All
notices or other communications which are required or permitted hereunder
shall
be in writing and sufficient if (i)
personally delivered or sent by telecopy, (ii)
sent by
nationally-recognized overnight courier or (iii)
sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if
to the
Grantee, to the address (or telecopy number) set forth on the Notice of Grant;
and
if
to the
Corporation, to its principal executive office as specified in any report
filed
by the Corporation with the Securities and Exchange Commission or to such
address as the Corporation may have specified to the Grantee in writing,
Attention: Corporate Secretary;
or
to
such other address as the party to whom notice is to be given may have furnished
to the other party in writing in accordance herewith. Any such communication
shall be deemed to have been given (i) when delivered, if personally delivered,
or when telecopied, if telecopied, (ii) on the first Business Day (as
hereinafter defined) after dispatch, if sent by nationally-recognized overnight
courier and (iii) on the third Business Day following the date on which the
piece of mail containing such communication is posted, if sent by mail. As
used
herein, “Business
Day”
means
a
day that is not a Saturday, Sunday or a day on which banking institutions
in the
city to which the notice or communication is to be sent are not required
to be
open.
12. Specific
Performance.
Grantee
expressly agrees that the Corporation will be irreparably damaged if the
provisions of this Agreement are not specifically enforced. Upon a breach
or
threatened breach of the terms, covenants and/or conditions of this Agreement
by
the Grantee,
the
Corporation shall, in addition to all other remedies, be entitled to a temporary
or permanent injunction, without showing any actual damage, and/or decree
for
specific performance, in accordance with the provisions hereof and thereof.
13. No
Waiver.
No
waiver of any breach or condition of this Agreement shall be deemed to be
a
waiver of any other or subsequent breach or condition, whether of like or
different nature.
14. Grantee
Undertaking.
The
Grantee hereby agrees to take whatever additional actions and execute whatever
additional documents the Corporation may in its reasonable judgment deem
necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on the Grantee pursuant to the express
provisions of this Agreement.
15. Modification
of Rights.
The
rights of the Grantee are subject to modification and termination in certain
events as provided in this Agreement and the Employment Agreement.
16. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Nevada applicable to contracts made and to be wholly performed
therein, without giving effect to its conflicts of laws principles.
17. Counterparts;
Facsimile Execution.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one
and the
same instrument. Facsimile execution and delivery of this Agreement is legal,
valid and binding execution and delivery for all purposes.
18. Entire
Agreement.
This
Agreement (including the Notice of Grant) and the Employment Agreement,
constitute the entire agreement between the parties with respect to the subject
matter hereof, and supersede all previously written or oral negotiations,
commitments, representations and agreements with respect thereto.
19. 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.
20. WAIVER
OF JURY TRIAL.
THE
GRANTEE HEREBY EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.