Form of Restricted Stock Grant Agreement

EX-10.64 4 k06272exv10w64.txt FORM OF RESTRICTED STOCK GRANT AGREEMENT EXHIBIT 10.64 ARCADIA RESOURCES, INC. RESTRICTED STOCK GRANT AGREEMENT This RESTRICTED STOCK GRANT AGREEMENT (the "Agreement") is made as of the effective date specified below (the "Effective Date") by and between ARCADIA RESOURCES, INC., a Nevada corporation (the "Company"), and the undersigned employee of the Company or one or more of the Company's subsidiaries (the "Holder"). The Company and Holder are sometimes referred to individually as a "Party" and collectively as the "Parties." RECITALS A. The Company desires that Holder exert his or her utmost efforts to improve the business and increase the assets of the Company. B. As a matter of separate inducement and not in lieu of salary, other compensation or benefits payable for the services of Holder, the Company, contingent on and subject to the terms and conditions of this Agreement, desires to grant Holder shares of the Company's fully-paid and non-assessable common stock, $0.001 par value per share, which are restricted securities within the meaning of and subject to the holding period and other restrictions provided herein (the "Restricted Stock"). Shares of the Restricted Stock are individually referred to as a "Share" and collectively as the "Shares." AGREEMENT Now, therefore, in consideration of the mutual covenants set forth below, and other good and valuable consideration, the adequacy and receipt of which are acknowledged, the Parties agree as follows: 1. GRANT OF RESTRICTED STOCK. Subject to and contingent on satisfaction of all of the terms and conditions of this Agreement, the Company hereby grants to Holder up to that total number of Shares of the Company's Restricted Stock as are specified on the Notice of Award attached and incorporated herein by this reference, contingent on and subject to Vesting and forfeiture as specified herein and the other terms and conditions, if any, specified in the Notice of Award. Nothing in this Agreement shall confer upon Holder any right to commence or continue employment with the Company or of any of its subsidiaries, nor interfere in any way with the right of the Company or any subsidiary to terminate Holder's employment in accordance with Holder's employment agreement. 2. VESTING. Shares of the Restricted Stock shall vest as described in the Notice of Award, provided that in the event of a Change in Control of the Company while Holder is employed by the Company, all Non-Vested Shares shall automatically become Vested. All shares of the Restricted Stock which have not Vested are "Non-Vested Shares." Holder shall have rights as a shareholder in Vested Shares of the Restricted Stock. Any purported attempt by Holder to transfer any interest in Non-Vested Shares of the Restricted Stock shall be null and void and not binding on the Company. All shares of the Restricted Stock shall vest in advance, not in arrears, and upon any termination of employment, whether by the Company or Holder, whether for cause or without cause, all Non-Vested Shares of the Restricted Stock shall be automatically forfeited and shall be null and void. As used herein, the term "Change in Control" shall have the same meaning given to such term in the Corporation's 2002 Employee Stock Incentive Plan. Nothing herein shall be construed to modify Holder's terms of employment with the Company. 3. ADDITIONAL PROVISIONS. Vesting of Shares of the Restricted Stock shall additionally be conditioned and contingent on the satisfaction of all of the terms and conditions of this Agreement, including but not limited to each of the following: 3.1. Holder shall have been in compliance with, and shall not have breached, the terms of Holder's employment agreement with the Company or its subsidiary, including confidentiality and covenant not to compete provisions. 3.2. Holder shall be in compliance with the Company's policies on insider trading and policies relating to the purchase and sale of Company securities by Company employees, to the extent applicable. 3.3. The Shares shall have been registered under the Securities Act of 1933, as amended, and under any applicable state securities laws, or shall qualify for an exemption from registration under the Act and applicable state law. 3.4. No more than the total aggregate number of Shares of Restricted Stock specified in the Notice of Award shall be subject to Vesting. 4. TAX OBLIGATIONS AND WITHHOLDINGS. Holder shall be responsible for all tax obligations arising from the grant and vesting of the Restricted Stock. Holder agrees to the withholding of taxes as the Company deems necessary as required by law or regulation. 5. NONTRANSFERABILITY. This Agreement and Non-Vested Shares shall not be transferred, pledged, assigned, hypothecated or disposed of in any manner, including by will or the laws of descent and distribution and by operation of law, and shall not be subject to execution, attachment, or similar process. Any attempted assignment, transfer, pledge, hypothecation, or other disposition contrary to the provisions hereof, including the levy of any execution, attachment, or similar process, shall be null and void and not binding on the Company. 6. CHANGES IN CAPITAL STRUCTURE. 6.1. In the event of changes in the outstanding Common Stock of the Company by reason of a stock dividend, stock split, reverse stock split, reorganization, recapitalization, merger, consolidation, liquidation, separation, combination or exchange of stock, change in the Company's business structure or sale or transfer of all or any part of the Company's business or assets (referred to as a "Capital Adjustment"), the number of Shares of Restricted Stock subject to this Agreement shall be adjusted by the Company consistent with such Capital Adjustment. No such adjustment shall be made with respect to (i) stock dividends or stock splits which do not exceed five percent (5%) in any fiscal Page 2 of 7 year, (ii) cash dividends, or (iii) the issuance to shareholders of the Company or others of rights to subscribe for additional Shares of Common Stock or other securities. If fractions of a Share of Restricted Stock would result from any such adjustment, the adjustment shall be revised to the next lowest whole number of Shares, so that no fraction of a Share shall be issued. 6.2. In the event of the proposed dissolution or liquidation of the Company, or, except as provided in Section 6.3 below, the sale of substantially all the assets of the Company for other than stock/and or securities, all Non-Vested Shares of Restricted Stock shall automatically terminate, unless otherwise provided by the Company's Board of Directors. 6.3. Unless terminated pursuant to Section 6.2, above, Non-Vested Shares may, at the discretion of the Board of Directors of the Company and the other corporation, be exchanged for restricted capital stock of another corporation which the Company and/or a subsidiary thereof is merged into, consolidated with, or all or a substantial portion of the property or stock of which is acquired by or separated or reorganized into. The terms, provisions and benefits to Holder of such substitute securities shall in all respects be identical to the terms, provisions and benefits of Holder under this Agreement prior to such substitution. 7. REGISTRATION OF RESALE OF SHARES BY HOLDER. The Company agrees to register under the Securities Act of 1933, as amended, Holder's resale of Shares of Restricted Stock in the event that the Company registers other securities on a form for which the Shares of Restricted Stock may be included, subject to applicable law, rules and regulations and the terms of this Agreement. 8. REPRESENTATIONS BY HOLDER. Holder acknowledges, covenants, represents and warrants to Company, as of the Effective Date and on a continuing basis thereafter, including as of the date of each vesting of the Shares of Restricted Stock, each of the following: 8.1. All Shares shall be acquired for investment purposes only, for Holder's own account, and not with a view towards, or for resale in connection with, the public sale or distribution thereof. Holder does not have any agreement or understanding, directly or indirectly, with the Company or any other person to distribute or resell any of the Shares. 8.2. The Company has granted the Shares without the payment or exchange of consideration or value by Holder, other than Holder's agreement to the terms and conditions of this Agreement and Holder's employment agreement with the Company or its subsidiary, including confidentiality and covenant not to compete provisions. 8.3. Holder has not acquired the Shares as a result of any advertisement, article, notice or other communication regarding the Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. 8.4. Holder is (i) an "accredited investor" as defined in Rule 501(a) of Regulation D promulgated by the U.S. Securities and Exchange Commission (the Page 3 of 7 "Commission") or (ii) if not an "accredited investor," either alone or with its purchaser representative(s), has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Shares and acknowledges that the Company reasonably believes that Holder comes within this description. 8.5. Holder understands that Holder is obligated to comply with all tax obligations applicable to Holder relative to the Restricted Stock and that Holder may not be permitted by the terms of this Agreement or applicable law to sell Shares of the Restricted Stock in order to satisfy such tax obligations. 8.6. Holder and/or its purchaser representative(s), if any, have obtained or have been furnished and are familiar with all publicly available financial, operational, business and other data, statements, information and materials relating to the business, finances, prospects and operations of the Company and such other publicly available materials as have been requested from the Company. 8.7. Holder agrees and acknowledges that Holder's ability to sell Vested Shares is conditioned and contingent on registration under the Securities Act of 1933, as amended, and under any applicable state securities laws, or the furnishing by counsel to the Company of an opinion that such transaction(s) qualify for an exemption from registration. Holder's right or ability to sell, transfer, pledge or otherwise dispose of the Shares is severely limited by applicable federal and state securities laws. Holder agrees to sell, transfer or otherwise dispose of Vested Shares only in compliance with applicable state and federal securities laws, including in the absence of an effective registration statement public resale in compliance with Rule 144 promulgated by the Commission which, among other requirements, shall require Holder to comply with the volume limitation, manner of sale and minimal one-year holding period. 9. ISSUANCE OF SHARE CERTIFICATES. The Company shall not be required to issue or deliver any certificate evidencing the Shares, except if required by applicable state law. The Company may place a "stop transfer" order with its transfer agent and place a restrictive legend on any stock certificate evidencing the Shares, including a legend stating that the Shares are Restricted Shares subject to the terms of this Agreement, including forfeiture as provided herein. In addition, Holder agrees to the imprinting, so long as the Company determines is required under applicable federal and state securities laws, of a legend on any stock certificate evidencing Shares in substantially the following form or such other form as the Company shall require: THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE LAW. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THESE SHARES UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE LAW OR AN OPINION OF THE COMPANY'S COUNSEL THAT REGISTRATION IS NOT REQUIRED. Page 4 of 7 Holder agrees that any removal of the restrictive legend from certificates representing Shares, which removal shall first be authorized by the Company, is predicated on the Company's reliance on, and Holder's agreement, that it will not sell any Shares except pursuant to either the registration requirements of the Act or an exemption therefrom. If required by the Company, Holder shall pay the Company's reasonable expenses in connection a request to remove such legend. 10. GOVERNING LAW AND ARBITRATION. This Agreement and all disputes related to this Agreement or the Restricted Stock shall be governed by and construed in accordance with the laws of the State of Florida, notwithstanding the fact that either party hereto is or may hereafter become domiciled or located in a different state. Any dispute, controversy or claim arising out of or relating to this to this Agreement or the Restricted Stock shall be resolved at arbitration in accordance with the rules of the American Arbitration Association, except for any equitable or injunctive relief sought by the Company. The arbitration shall be held at a location within Collier County, Florida. The parties hereto agree that any arbitration award rendered on any claim submitted to arbitration shall be final and binding upon the parties and not subject to appeal and that judgment may be entered upon any arbitration award by any court of competent jurisdiction. The parties hereto agree that the expenses of any arbitration shall be borne equally by the parties to the proceeding, except that the party determined to have prevailed shall be awarded its reasonable attorneys fees and costs of its own experts, evidence and the like. Holder acknowledges and agrees that by making this agreement to submit all claims to binding arbitration, Holder hereby waives the right to litigate in a court of law, and to trial by jury if applicable. 11. BINDING EFFECT AND WAIVER OF BREACH. Except as herein otherwise expressly provided, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. The waiver of breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach. Each and every right, remedy and power hereby granted to any Party or allowed it by law shall be cumulative and not exclusive of any other. 12. SEVERABILITY. If any of the provisions of this Agreement or the application thereof to any Party under any circumstances is adjudicated to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of this Agreement or the application thereof. 13. INTERPRETATION OF AGREEMENT. Where appropriate in this Agreement, words used in the singular shall include the plural, and words used in the masculine shall include the feminine and neuter. All headings that are used in this Agreement are for the convenience of the reader only and shall not be used to limit or construe any of the provisions hereof. 14. SURVIVAL OF PROVISIONS. The representations, warranties, covenants, obligations and undertakings of Holder under this Agreement are continuing and shall survive performance hereunder. Page 5 of 7 15. AMENDMENT OF AGREEMENT. The terms and provisions of this Agreement may be altered or amended in any of their provisions only by the mutual written agreement of the Parties hereto. 16. SUCCESSORS. The Agreement shall inure to the benefit of the Company and its successors and assigns, but may not be assigned or delegated by Holder. 17. ADVICE OF COUNSEL. Holder is entering into this contract freely and voluntarily and has been advised to seek the advice of her legal counsel prior to entering into this Agreement. 18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all other previous or contemporaneous communications, representations, understandings, agreements, negotiations and discussions, either oral or written, between the Parties with respect to the subject matter hereof, including Holder's employment agreement with the Company to the extent, if any, that it purports to contradict or vary the terms of this Agreement. The Parties acknowledge and agree that there are no written or oral agreements, understandings, or representations, directly or indirectly related to this Agreement that are not set forth herein. 19. COUNTERPART/FACSIMILE SIGNATURES. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement. For purposes of this Agreement, a facsimile or PDF signature shall be valid and enforceable as an original. 20. INCORPORATION OF RECITALS. The Recitals set forth above are incorporated herein by reference. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date. ARCADIA RESOURCES, INC., a Nevada corporation By: ________________________________________ Its: ________________________________________ ACCEPTED AND AGREED TO BY HOLDER: _____________________________________________ Page 6 of 7 NOTICE OF AWARD NAME OF HOLDER: _______________ EFFECTIVE DATE OF AGREEMENT/GRANT OF AWARD: ______________ AGGREGATE NUMBER OF SHARES OF RESTRICTED STOCK SUBJECT TO AWARD: Up to _______ Shares. VESTING: Shares of the Restricted Stock shall Vest as follows: ________________. OTHER: ______________________________. ARCADIA RESOURCES, INC., a Nevada corporation By: ________________________________________ Its: ACCEPTED AND AGREED TO BY HOLDER: _____________________________________________ Page 7 of 7