Exhibit 10.2
Date of Amendment: January 31, 2014
TUNGSTEN CORP.
AMENDED AND RESTATED
RESTRICTED STOCK AWARD AGREEMENT
THIS AMENDED AND RESTATED RESTRICTED STOCK AWARD AGREEMENT is made by and
between Tungsten Corp. ("Tungsten" or the "Company") and Xxxxxx X. Xxxxx
("Director").
WHEREAS, Tungsten and Director entered into a Restricted Stock Award
Agreement on May 13, 2013 (the "Original Agreement"); and
WHEREAS, Tungsten and Director wish to amend and restate the Original
Agreement;
NOW, THEREFORE, the Original Agreement is hereby amended and restated as
follows:
1. AWARD OF RESTRICTED STOCK. In consideration for services rendered by the
Director, Tungsten hereby grants to Director, in the manner and subject to the
conditions hereinafter provided, 750,000 shares of Tungsten's Common Stock, par
value $.0001 per share (the "Restricted Stock"). As used in this Agreement, the
term "Restricted Stock" refers to the stock granted under this Agreement and
includes all securities received (a) in replacement of the Restricted Stock, (b)
as a result of stock dividends or stock splits in respect of the Restricted
Stock, and (c) in replacement of the Restricted Stock in a recapitalization,
merger, reorganization or the like.
This Restricted Stock is specifically conditioned on compliance with the
terms and conditions set forth herein.
2. VESTING OF RESTRICTED STOCK; DELIVERIES OF CERTIFICATES.
2.1 Vesting. The right to unrestricted ownership in the Restricted Stock
under this Agreement shall vest with respect to 250,000 shares of Restricted
Stock on April 30, 2014, and 62,500 shares of Restricted Stock on the last day
of June, September, December and March following the date of this Agreement
until such Restricted Stock shall be fully vested on March 31, 2016, subject to
Director's continuous service to the Company or any of its subsidiaries, as an
officer, director, employee or service provider. Notwithstanding the foregoing,
all shares of Restricted Stock shall vest upon a Change in Control as defined in
Exhibit A hereto.
2.2 Deliveries by Tungsten. A certificate evidencing the Restricted Stock
shall be issued by Tungsten in Director's name, pursuant to which Director shall
have voting rights and shall be entitled to receive all dividends.
Notwithstanding any other provisions of this Agreement, the issuance or delivery
of any shares under this Agreement may be postponed for such period as may be
required to comply with applicable requirements of any national securities
exchange or any requirements under any federal or state securities law or
regulation. Tungsten shall not be obligated to (a) issue or deliver any
Restricted Stock if the issuance or delivery thereof shall constitute a
violation of any provision of any law or regulation of any governmental
authority or any national securities exchange, (b) qualify the issuance of the
Restricted Stock in any jurisdiction, or (c) register the shares of Restricted
Stock with the SEC.
3. ADJUSTMENTS. Should any change be made to the Common Stock of Tungsten
by reason of any stock split, reverse stock split, stock dividend, combination
of shares, exchange of shares or other change affecting the outstanding Common
Stock as a class without Tungsten's receipt of consideration, Tungsten shall
make appropriate adjustments to the number and/or class of securities in effect
under this Agreement in order to prevent the dilution or enlargement of benefits
thereunder; provided however, that the number of shares subject to this
Agreement shall always be a whole number and Tungsten shall make such
adjustments as are necessary to insure this Restricted Stock Award is set as
whole shares.
4. SUSPENSION AND CANCELLATION OF STOCK
4.1 Mandatory Suspension and Cancellation of Stock. In the event Tungsten
reasonably believes Director has committed an act of misconduct including, but
limited to acts specified below, Tungsten may suspend Director's right in his
Restricted Stock Award granted hereunder pending final determination by the
Board of Directors of the Company (the "Board"). If Director is determined by
the Board to have:
(a) committed an act of embezzlement, fraud, dishonesty, breach of
fiduciary duty to Tungsten or a subsidiary;
(b) deliberately disregarded the rules or policies of Tungsten or a
subsidiary which resulted in loss, damage or injury to Tungsten or a subsidiary;
(c) made any unauthorized disclosure of any trade secret or confidential
information of Tungsten or a subsidiary;
(d) induced any partner, collaborator, client or customer of Tungsten or a
subsidiary to break any contract with Tungsten or a subsidiary or induced any
principal for whom Tungsten or a subsidiary acts as agent to terminate such
agency relations;
(e) engaged in any substantial conduct which constitutes unfair competition
with Tungsten or a subsidiary; or
(f) violated any requirement of the Foreign Corrupt Practices Act or any
analogous foreign regulations,
neither Director nor Director's estate shall be entitled to shares of the
Restricted Stock hereunder. The determination of the Board shall be final and
conclusive. In making its determination, the Board shall give the Director an
opportunity to appear and be heard at a hearing before the full Board and
present evidence on Director's behalf.
5. RESERVATION OF SHARES. Tungsten agrees that prior to the issuance of the
Restricted Stock represented by this Agreement, there shall be reserved for
issuance such number of Tungsten's authorized and unissued shares as shall be
necessary to satisfy the terms and conditions of this Agreement.
6. RIGHTS OF DIRECTORS.
6.1 No Obligation To Employ. Nothing in this Agreement will confer or be
deemed to confer on Director any right to continue in the employ of, or to
continue any other relationship with, Tungsten or a subsidiary or to limit in
any way the right of Tungsten or a subsidiary to terminate Director's employment
or other relationship at any time, with or without cause.
6.2 Compliance With Code Section 162(m). At all times when Tungsten
determines that compliance with Section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code"), is required or desired, the Restricted Stock if
granted to a Named Executive Officer shall comply with the requirements of Code
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Section 162(m). In addition, in the event that changes are made to Code Section
162(m) to permit greater flexibility with respect to this Agreement Tungsten
may, subject to this Section 6, make any adjustments it deems appropriate.
7. DIRECTOR REPRESENTATIONS.
7.1 Purchase for Own Account. Director represents that he is acquiring the
Restricted Stock solely for his own account and beneficial interest for
investment and not for sale or with a view to distribution of the Restricted
Stock or any part thereof, has no present intention of selling (in connection
with a distribution or otherwise), granting any participation in, or otherwise
distributing the same, and does not presently have reason to anticipate a change
in such intention.
7.2 Information and Sophistication. Director hereby: (i) acknowledges that
he has received all the information he has requested from the Company and that
he considers necessary or appropriate for deciding whether to acquire the
Restricted Stock, (ii) represents that he has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the Restricted Stock and to obtain any additional
information necessary to verify the accuracy of such information and (iii)
further represents that he has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risk of this
investment.
7.3 Ability to Bear Economic Risk. Director acknowledges that investment in
the Restricted Stock involves a high degree of risk, and represents that he is
able, without materially impairing his financial condition, to hold the
Restricted Stock for an indefinite period of time and to suffer a complete loss
of his investment.
7.4 Further Assurances. Director agrees and covenants that at any time and
from time to time it will promptly execute and deliver to the Company such
further instruments and documents and take such further action as the Company
may reasonably require in order to carry out the full intent and purpose of this
Agreement and to comply with state or federal securities laws or other
regulatory approvals.
8. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. Tungsten shall not be
obligated to issue any Restricted Stock with respect to this Agreement unless
such shares are at that time effectively registered or exempt from registration
under the federal securities laws and the offer and sale of the shares are
otherwise in compliance with all applicable securities laws. Director may be
required to furnish representations or undertakings deemed appropriate by
Tungsten to enable the offer and sale of the shares or subsequent transfers of
any interest in such shares to comply with applicable securities laws. Evidences
of ownership of shares acquired with respect to this Agreement shall bear any
legend required by, or useful for purposes of compliance with, applicable
securities laws or this Agreement.
9. RESTRICTED SECURITIES. Director understands that the Restricted Stock
are characterized as "restricted securities" under the Securities Act inasmuch
as they are being acquired from the Company in a transaction not involving a
public offering and that under the Securities Act and applicable regulations
thereunder such securities may be resold without registration under the
Securities Act only in certain limited circumstances. Accordingly, the
Restricted Stock, absent an effective registration statement, can only be sold
pursuant to an exemption from registration, such as Rule 701 or Rule 144 of the
Securities Act. Director understands that the Company is under no obligation to
register any of the securities sold hereunder.
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10. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
10.1 Legends. Director understands and agrees that the Company will place
the legends set forth below or similar legends on any stock certificate(s)
evidencing the Restricted Stock, together with any other legends that may be
required by state or federal securities laws, the Company's Articles of
Incorporation or Bylaws, any other agreement between Director and the Company or
any agreement between Director and any third party:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). THE SHARES
REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE
OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE 1933 ACT.
10.2 Stop-Transfer Instructions. Director agrees that, to ensure compliance
with the restrictions imposed by this Agreement, the Company may issue
appropriate "stop-transfer" instructions to its transfer agent, if any, and if
the Company transfers its own securities, it may make appropriate notations to
the same effect in its own records.
10.3 Refusal to Transfer. The Company will not be required (i) to transfer
on its books any Restricted Stock that have been sold or otherwise transferred
in violation of any of the provisions of this Agreement, or (ii) to treat as
owner of such Restricted Stock, or to accord the right to vote or pay dividends,
to any purchaser or other transferee to whom such Restricted Stock have been so
transferred.
11. ATTORNEYS' FEES. In the event of any litigation, arbitration, or other
proceeding arising out of this Agreement, the prevailing party shall be entitled
to an award of costs, including an award of reasonable attorneys' fees. Any
judgment, order, or award entered in any such proceeding shall designate a
specific sum as an award of attorneys' fees and costs incurred. This attorneys'
fee provision is intended to be severable from the other provisions of this
Agreement, shall survive any judgment or order entered in any proceeding, and
shall not be deemed merged into any such judgment or order, so that such further
fees and costs as may be incurred in the enforcement of an award or judgment or
in defending it on appeal shall likewise be recoverable by further order of a
court or panel or in a separate action as may be appropriate.
12. MISCELLANEOUS PROVISIONS.
12.1 Notice. All notices to be given by either party to the other shall be
in writing and may be transmitted by personal delivery, facsimile transmission,
overnight courier or mail, registered or certified, postage prepaid with return
receipt requested; provided, however, that notices of change of address or telex
or facsimile number shall be effective only upon actual receipt by the other
party. Notices shall be delivered at the following addresses, unless changed as
provided for herein.
To the Director: Xxxxxx X. Xxxxx
000 Xxxxx Xxxx Xxxxxx, Xxx. 000
Xxxxxxxx, Xxxxxxxxxxxx 00000
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To Tungsten: Tungsten Corp.
0000 Xxxxxxxxx 000 Xxxx
Xxxxx, Xxxxxxx 00000
12.2 Entire Agreement. This Agreement constitutes the entire contract
between the parties hereto with regard to the subject matter hereof. They
supersede any other agreements, representations or understandings (whether oral
or written and whether express or implied) that relate to the subject matter
hereof.
12.3 Severability; Conflicts. Should any provision of this Agreement be
held to be invalid or illegal, such illegality shall not invalidate the whole of
the Agreement, but, rather, the Agreement shall be construed as if it did not
contain the illegal part or narrowed to permit its enforcement, and the rights
and obligations of the parties shall be construed and enforced accordingly.
12.4 Choice of Law; Venue. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Nevada, as such laws are
applied to contracts entered into and performed in such state. Any action
brought in connection with this Agreement shall be subject the exclusive
jurisdiction of the state and federal courts sitting in Nevada in any action on
a claim arising out of, under or in connection with this Agreement or the
transactions contemplated by this Agreement.
12.5 Binding Effect. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, executors, and
successors.
12.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which when taken together shall constitute one and the
same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Amended and Restated Restricted Stock Award
Agreement has been executed as of January 31, 2014.
Tungsten:
Tungsten Corp.
--------------------------------
NAME:
TITLE:
DIRECTOR:
--------------------------------
XXXXXX X. XXXXX
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Exhibit A to Restricted Stock Agreement
"CHANGE OF CONTROL"
The following are definitions of "Change of Control" and of various terms used
in the definition of "Change of Control".
"Change of Control" means the occurrence of any one or more of the following:
(i) Any Person becomes an Acquiring Person, except as the result of (A) any
acquisition of Voting Securities of the Company by the Company or (B) any
acquisition of Voting Securities of the Company directly from the Company (as
authorized by the Board).
(ii) Individuals who constitute the Incumbent Board cease for any reason to
constitute at least a majority of the Board; and for this purpose, any
individual who becomes a member of the Board after the date of this Agreement
whose election, or nomination for election by holders of the Company's Voting
Securities, was approved by the vote of at least a majority of the individuals
then constituting the Incumbent Board shall be considered a member of the
Incumbent Board (except that any such individual whose initial election as
director occurs as the result of an actual or threatened election contest,
within the meaning of Rule 14a-11 under the Exchange Act, or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board shall not be so considered).
(iii) The consummation of a reorganization, merger, share exchange,
consolidation, or sale or disposition of all or substantially all of the assets
of the Company unless, in any case, the Persons who or which Beneficially Own
the Voting Securities of the Company immediately before that transaction
Beneficially Own, directly or indirectly, immediately after the transaction, at
least 75% of the Voting Securities of the Company or any other corporation or
other entity resulting from or surviving the transaction (including a
corporation or other entity which, as the result of the transaction, owns all or
substantially all of Voting Securities of the Company or all or substantially
all of the Company's assets, either directly or indirectly through one or more
subsidiaries) in substantially the same proportion as their respective ownership
of the Voting Securities of the Company immediately before that transaction.
(iv) The Company's shareholders approve a complete liquidation or dissolution of
the Company.
"Acquiring Person" means any Person (other than an Excluded Person) who or
which, alone or together with all Affiliates and Associates of that Person, is
the Beneficial Owner of 25% or more of the Voting Securities of the Company then
outstanding.
"Affiliate" and "Associate" have the respective meanings ascribed to them in
Rule 12b-2 under the Exchange Act.
"Beneficial Owner" means beneficial owner as defined in Rule 13d-3 under the
Exchange Act. ("Beneficially Owns" has the correlative meaning.) Any calculation
of the number of Voting Securities outstanding at any particular time, including
for purposes of determining the particular percentage of such outstanding Voting
Securities of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) under the Exchange Act.
"Board" means the Board of Directors of the Company.
"Company" means Tungsten Corp., a Nevada corporation.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time.
"Excluded Person" means:
(i) Director or any group (within the meaning of Section 13(d)(3) of the
Exchange Act) of which Director is a member;
(ii) any Person that controls (as defined in Rule 12b-2 under the Exchange Act)
the Company as of the date of the Agreement or any group of which any such
Person is a member;
(iii) any employee-benefit plan, or related trust, sponsored or maintained by
the Company or any of its subsidiaries, or any trustee or other fiduciary
thereof; or
(iv) any corporation or other entity owned directly or indirectly by the
shareholders of the Company in substantially the same proportions as their
ownership of the Voting Securities of the Company.
"Incumbent Board" means the members of the Board on the effective date of the
Agreement (subject, however, to clause (ii) of the definition of "Change of
Control").
"Person" means any individual, firm, corporation, partnership, limited liability
company, trust, or other entity, including any successor (by merger or
otherwise) of such entity.
"Voting Securities" means securities or other interests having by their terms
ordinary voting power to elect members of the board of directors of a
corporation or individuals serving similar functions for a noncorporate entity.
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