Exhibit 4.7
TERMS OF
RESTRICTED STOCK GRANTS TO JACK ROUBINEK
ARTICLE 1
1.1 Compensation Upon Termination.
(a) Termination by the Company without cause or for
nonperformance due to disability. If the Company terminates Jack
Roubinek's (the "Employee") employment without cause or for
nonperformance due to disability, then the Employee's right to receive
shares of restricted common stock of the Company (the "Shares") will
continue to vest according to the vesting schedule in Section 3.1.
(b) Termination by the Company for cause or by the Employee
without good reason. If the Company terminates the Employee's
employment for cause or if the Employee terminates his employment
without good reason, then the Employee's right to receive Shares that
have not vested according to Section 3.1 on the date of termination
will expire.
(c) Termination by the Employee for Company breach. If the
Employee terminates his employment because of a breach by the Company
of an employment-related covenant, then the Employee's right to receive
Shares will continue to vest according to Section 3.1.
ARTICLE 2
2.1 Remedies. If the Employee breaches certain covenants of his
employment, then the Company will be entitled to forfeiture by the Employee of
any Shares granted to the Employee under Section 3.1 for which the restrictions
in Section 3.2 have not lapsed at the time of such breach.
ARTICLE 3
Restricted Stock Grant
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3.1 Restricted Stock Grant. Subject to the terms and conditions
contained herein, the Company will issue an aggregate of 40,000 Shares to the
Employee in accordance with the following vesting schedule:
Number of Shares Issue Date
---------------- ----------
8,000 April 2, 1997
8,000 April 2, 1998
8,000 April 2, 1999
8,000 April 2, 2000
8,000 April 2, 2001
3.2 Conditional Vesting. Notwithstanding anything herein to the
contrary, the Company will have no obligation to issue Shares that have not yet
vested according to the schedule in Section 3.1 if (a) the Employee's employment
is terminated by the Company for cause or by the Employee without good reason;
(b) if the Employee breaches any term, condition, or provision of his restricted
stock grants ("Grants"); (c) if the Employee violates certain covenants of his
employment, whether or not such covenants are held to be enforceable; and (d) if
the Employee challenges certain covenants of his employment, or if such cove-
nants are found to be invalid or unenforceable by a court of competent jurisdic-
tion or by arbitration.
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3.3 Issuance Subject to Company Trading Policy. The Employee has agreed
that the provisions of the Company's written policies pertaining to Company
personnel stock trading will apply in all respects to the Grants. Such
provisions will apply to the Employee at all times that the Employee is an
employee, consultant, or otherwise potentially in possession of material
nonpublic information concerning the Company.
3.4 Issuance Subject to Applicable Laws. The issuance of the Shares is
expressly conditioned upon compliance with the Securities Act of 1933, as
amended (the "Securities Act"), all applicable state securities laws and all
applicable requirements of any stock exchange or over the counter market on
which the Company's Common Stock may be listed or traded at the time of vesting
and issuance. The Employee has agreed to cooperate with the Company to ensure
compliance with such laws.
3.5. Representations of the Employee. The Employee has acknowledged
that the Shares have not been registered under the Securities Act or any state
securities law and therefore such Shares are "restricted stock" and not
transferable for at least two (2) years from the date of issuance. The Employee
has agreed not to sell, transfer, hypothecate, or otherwise transfer such Shares
except pursuant to an effective registration statement or pursuant to an opinion
of counsel acceptable to the Company that such Shares may be transferred without
violating any state or federal securities law. The Employee is being granted
such Shares for investment and not for resale.
3.6 Change of Control. In the event of a Change of Control (as defined
below) of the Company, and at any time thereafter the Employee is terminated by
the Company or its successor, as applicable, without cause or for nonperformance
due to disability, then all of the Employee's Shares that have not vested prior
to such termination will be immediately vested upon, and issued to Employee as
soon as practicable after, such termination. "Change of Control" shall mean
either of the following:
(a) any consolidation or merger of the Company in which the
Company is not the continuing or surviving corporation or pursuant to
which shares of the Common Stock of the Company would be converted into
cash, securities or other property, other than a merger of the Company
in which the holders of the Common Stock of the Company immediately
prior to the merger have the same proportionate ownership of common
stock of the surviving corporation immediately after the merger; or
(b) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Company.
ARTICLE 4
Registration Rights
4.1 Piggyback Registration.
(a) If the Company proposes to file a registration statement
on Form S-3 under the Securities Act relating to any of its Common
Stock (other than a registration statement on Form S-3 to register
shares issuable upon the exercise of options by affiliates of the
Company), the Company will promptly, but in any event not less than
thirty (30) days prior to the initial filing of such registration
statement, deliver written notice of such intention to the Employee
setting forth the intended method of disposition, the maximum proposed
offering price, commissions and discounts in connection therewith and
other relevant information. If the Employee so requests within ten (10)
days after such notification, the Company will to use its best
reasonable efforts to register any Shares that have prior thereto
vested according to the Schedule in Section 3.1 that the Employee
requests to be registered by inclusion in such registration statement
so that such Shares may be sold at such times and in such manner as the
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Employee thereof determines. The Company may withdraw or cease
proceeding with such piggyback registration of Shares if at the same
time it withdraws or ceases proceeding with the registration of the
shares of Common Stock that gave rise to the piggyback registration
rights of the Employee under this Section 4.1.
(b) If the registration statement that the Company proposes to
file relates to an underwritten public offering of Common Stock, the
Shares will be subject to the underwriting agreement among the
underwriter or underwriters and the Company. Notwithstanding any other
provision of this Section 4.1, if the underwriter determines that
marketing factors require a limitation of the number of shares of
Common Stock to be underwritten, the Company will so advise all selling
holders of shares of Common Stock, and the Company will include in the
underwritten registration (i) first, the Common Stock the Company
proposes to sell, and (ii) second, the number of shares requested to be
included therein by the shareholders of the Company who have requested
inclusion of their shares of Common Stock pursuant to registration
rights granted to them pro rata based on the number of shares requested
to be included therein by such shareholders. If the Employee
disapproves of the terms of any such underwriting, he may elect to
withdraw by written notice to the Company and the managing underwriter.
4.2 Costs and Expenses. All costs and expenses in connection with the
registration of any Shares under Section 4.1 (to the extent that the payment by
the Company of such expenses is not prohibited by applicable law), including
federal and state registration and filing fees, printing expenses (including
such number of any preliminary and final prospectuses as may be reasonably
requested) and the fees and disbursements of counsel and of independent
accountants and other experts of the Company will be borne by the Company;
provided, however, that the Company will not be obligated to pay fees and
disbursements of counsel for the Employee, any underwriting commissions or
discounts relating to the Shares or any stock transfer taxes relating to the
Shares.
4.3 Indemnification. By requesting Shares to be covered by any
registration statement in accordance with Section 4.1, the Employee agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, and each Person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages, liabilities (or actions in respect thereto)
or expenses to which the Company or any such director, officer or controlling
Person may become subject under the Securities Act, or otherwise, insofar as
such losses, claims, damages, liabilities (or actions in respect thereof) or
expenses arise out of or are based upon any untrue or alleged untrue statement
of any material fact contained in such registration statement (or amendment
thereto), or prospectus (or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by the Employee
specifically for use in the preparation thereof.
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