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Exhibit 10.LL
RESTRICTED STOCK AGREEMENT
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This agreement ("Agreement") is executed and made effective as of this 30th
day of April, 1999 (the "Effective Date"), by and between Xxxxxx X. Xxxxxxx (the
"Executive") and Information Resources, Inc., a Delaware corporation (the
"Company").
W I T N E S S E T H
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WHEREAS, the Company and the Executive have executed, on the Effective
Date, agreements governing the terms of the Executive's employment by the
Company (the "Employment Agreement") and the award of stock options to the
Executive (the "Stock Option Agreement");
WHEREAS, the Company and the Executive desire that the Executive should
receive an award of the Company's common stock, par value $0.01 per share
("Common Stock"), as compensation for the Executive's service to Company; and
WHEREAS, the Company desires to impose certain restrictions upon the
Executive's rights to retain and/or transfer such Common Stock.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto (the "Parties") hereby agree as follows:
1. Award of Stock. The Company hereby awards to the Executive, and the
Executive hereby accepts, as compensation for the Executive's service to the
Company, Three Hundred Ten Thousand (310,000) shares of Company Common Stock
(the "Restricted Stock"). The Restricted Stock shall be (a) comprised of One
Hundred Twenty Thousand (120,000) shares, hereinafter referred to as "First
Tranche Restricted Shares," plus Ninety Five Thousand (95,000) shares,
hereinafter referred to as "Second Tranche Restricted Shares," plus Ninety Five
Thousand (95,000) shares, hereinafter referred to as "Third Tranche Restricted
Shares," and (b) subject to the terms, conditions and restrictions described in
this Agreement.
2. Rights as Stockholder. Except as otherwise provided in this Agreement,
the Executive shall have the rights of a stockholder of the Company (including
the rights to receive dividends and vote) with respect to the Restricted Stock
until the Restricted Stock is canceled and forfeited pursuant to Section 3(b).
3. Vesting and Forfeiture Conditions. The Restricted Stock shall become
non-forfeitable and freely transferable ("Vested"), only under the conditions,
and only to the extent, described in this Section 3:
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(a) (i) Subject to the provisions of Section 3(b), all of the
Restricted Stock shall automatically be fully Vested as of the
seventh anniversary of the Effective Date.
(ii) All of the Restricted Stock shall automatically be fully
Vested immediately upon the Company's termination of Executive's
employment with the Company if such termination by the Company
occurs within the six months following a "Change of Control"
(within the meaning of Section 4.0(b) of the Employment
Agreement) which occurred on or after the second anniversary of
the Effective Date.
(iii) If on any date (a "First Tranche Measurement Date")
following the Effective Date the 10 Day Trading Price of Company
Common Stock is equal to or greater than $20.00 per share, then
subject to the provisions of Section 3(b), (a) a sufficient
number of the First Tranche Restricted Shares shall automatically
become Vested as of the later of such First Tranche Measurement
Date and the second anniversary of the Effective Date such that
at least 40,000 of the First Tranche Restricted Shares shall be
Vested as of such later date; (b) a sufficient number of the
First Tranche Restricted Shares shall automatically become Vested
as of the later of such First Tranche Measurement Date and the
third anniversary of the Effective Date such that at least 80,000
of the First Tranche Restricted Shares shall be Vested as of such
later date; and (c) all 120,000 First Tranche Restricted Shares
shall automatically be Vested as of the later of such First
Tranche Measurement Date and the fourth anniversary of the
Effective Date.
(iv) If on any date (a "Second Tranche Measurement Date")
following the Effective Date the 10 Day Trading Price of Company
Common Stock is equal to or greater than $25.00 per share, then
subject to the provisions of Section 3(b), (a) a sufficient
number of the Second Tranche Restricted Shares shall
automatically become Vested as of the later of such Second
Tranche Measurement Date and the second anniversary of the
Effective Date such that at least 31,667 of the Second Tranche
Restricted Shares shall be Vested as of such later date; (b) a
sufficient number of the Second Tranche Restricted Shares shall
automatically become Vested as of the later of such Second
Tranche Measurement Date and the third anniversary of the
Effective Date such that at least 63,333 of the Second Tranche
Restricted Shares shall be Vested as of such later date; and (c)
all 95,000 Second Tranche Restricted Shares shall automatically
be Vested as of the later of such Second Tranche Measurement Date
and the fourth anniversary of the Effective Date.
(v) If on any date (a "Third Tranche Measurement Date")
following the Effective Date the 10 Day Trading Price of Company
Common Stock is
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equal to or greater than $30.00 per share, then subject to the
provisions of Section 3(b), (a) a sufficient number of the Third
Tranche Restricted Shares shall automatically become Vested as of
the later of such Third Tranche Measurement Date and the second
anniversary of the Effective Date such that at least 31,667 of
the Third Tranche Restricted Shares shall be Vested as of such
later date; (b) a sufficient number of the Third Tranche
Restricted Shares shall automatically become Vested as of the
later of such Third Tranche Measurement Date and the third
anniversary of the Effective Date such that at least 63,333 of
the Third Tranche Restricted Shares shall be Vested as of such
later date; and (c) all 95,000 Third Tranche Restricted Shares
shall automatically be Vested as of the later of such Third
Tranche Measurement Date and the fourth anniversary of the
Effective Date.
(b) (i)Notwithstanding the provisions of Section 3(a), if at any time
on or after the Effective Date the Executive ceases to be
employed by the Company in the capacity of chief executive
officer of the Company, then except as provided in Section 3(c),
(a) no shares of Restricted Stock shall become Vested after the
date of such cessation of the Executive's employment (the
"Termination Date"), and (b) all shares of Restricted Stock which
are not Vested as of such Termination Date shall be immediately
canceled and forfeited to Company, and all of the Executive's
(and/or any other holder's) rights therein shall immediately
cease.
(ii) In the event that any shares of the Restricted Stock shall
be forfeited prior to becoming Vested for any reason, the
Executive agrees to return to the Company promptly any stock
certificate or certificates evidencing such shares of Restricted
Stock.
(c) If the Termination Date occurs as the direct result of the
Executive's Termination of his employment for "Good Reason"
(within the meaning of Section 5.2 of the Employment Agreement),
Section 3(b)(i) of this Agreement shall not apply with respect to
the Restricted Stock during the three year period immediately
following such Termination Date.
(d) For purposes of this Agreement, the term "10 Day Trading Price"
as of a specific date means (i) the price per share of Common
Stock determined by the average of the closing bid prices for
Common Stock reported on the National Association of Securities
Dealers Automated Quotation System's National Market System for
the period of 10 consecutive trading days prior to and ending on
the day preceding such specific date; or, if the foregoing
information is not determinable, (ii) the average of the daily
high and low prices at which one share of Common Stock has traded
on the stock exchange on which the Common Stock generally has the
greatest trading volume, for
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the period of 10 consecutive trading days prior to and ending on
the day preceding such specific date.
(e) After shares of Restricted Stock have become Vested, the
restrictions imposed with respect to Restricted Stock under this
Agreement shall no longer apply to such Vested shares.
4. Restricted Stock Non-Transferable Prior to Vesting. Prior to the time
that the Restricted Stock has Vested, the Restricted Stock may not be
transferred, pledged, hypothecated, assigned or otherwise disposed of to anyone
other than a transfer to Executive's Immediate Family or a trust for the benefit
of Executive's Immediate Family. "Immediate Family" as used in this Agreement
shall mean spouse, lineal descendant or antecedent, father, mother, brother or
sister. In such case, as a condition to any such transfer, the transferee shall
agree in writing to comply with and be subject to the provisions of this
Agreement, and there shall be no further transfer, pledge, hypothecation,
assignment or other disposition of such Restricted Stock except in accordance
with the terms of this Agreement. Any transfer, pledge, hypothecation,
assignment or other disposition of the Restricted Stock prior to the time that
the Restricted Stock has Vested, other than as permitted under this Section 4,
shall cause the Restricted Stock to be immediately forfeited and canceled, and
shall cause all of Executive's (and/or any other holder's) rights therein to
immediately cease.
5. Withholding on Income Taxable to Executive. Company shall withhold
from Executive's net cash bonus or net regular cash compensation the amounts of
federal, state and local income taxes and Social Security or other
employment-related taxes that Company reasonably determines are required to be
withheld pursuant to any law, rule or regulation. If Company reasonably
determines that the withholding obligations arising in connection with or as a
result of the award or Vesting of the Restricted Stock cannot be satisfied from
amounts due from Company to Executive, then upon written request from Company,
Executive shall pay to Company an additional amount of cash sufficient to permit
Company to timely satisfy all necessary withholding obligations arising in
connection with or as a result of the award or Vesting of such Restricted Stock.
6. Investment Purpose; Transfers in Compliance with Securities Laws.
Executive represents and warrants to Company that (a) Executive is aware of
Company's business affairs and financial condition, and has acquired sufficient
information about Company to reach an informed and knowledgeable decision to
acquire the Restricted Stock, and (b) Executive is acquiring the Restricted
Stock for Executive's own account for investment purposes only and not with a
view to, or for the resale in connection with, any "distribution" thereof for
purposes of the Securities Act of 1933, as amended (the "Securities Act").
Executive acknowledges that Executive understands that the Restricted Stock must
be held indefinitely unless subsequently registered under the Securities Act or
unless an exemption from registration is otherwise available. Executive
understands that the certificate(s) evidencing the Restricted Stock will be
imprinted with a legend which prohibits the transfer of the Restricted Stock
unless the Restricted Stock is registered or such registration is not required
in the opinion of counsel reasonably satisfactory to Company, in form and
substance reasonably satisfactory to Company.
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7. Award Not Compensation for Certain Purposes. Executive agrees that,
except as required by law, the Restricted Stock acquired pursuant to this
Agreement shall not be considered or included as part of the annual compensation
of Executive for purposes of computing Company's contribution to any qualified
or non-qualified deferred compensation arrangements.
8. Restrictive Legends and Stop-Transfer Orders.
(a) Certificates and Legends. Certificates shall be issued in respect
of the Restricted Stock, and shall be registered in the name of the
Executive. Executive understands and agrees that Company shall cause the
legends set forth below or legends substantially equivalent thereto, to be
placed upon any certificate(s) evidencing ownership of the Restricted Stock
together with any other legends that may be required by state or federal
securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER OF THESE SECURITIES, IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH. THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
CONDITIONS OF FORFEITURE AND RESTRICTIONS ON TRANSFER AS SET FORTH IN
THE RESTRICTED STOCK AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL
HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE
PRINCIPAL OFFICE OF THE ISSUER. SUCH CONDITIONS OF FORFEITURE AND
TRANSFER RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SHARES.
(b) Stop-Transfer Notices. Executive agrees that, in order to ensure
compliance with the restrictions referred to herein, Company may issue
appropriate "stop transfer" instructions to its transfer agent, if any, and
that, if Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(c) Refusal to Transfer. Company shall not be required (i) to
transfer on its books any shares of 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
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or to accord the right to vote or pay dividends to any purchaser or other
transferee to whom such Restricted Stock shall have been so transferred.
(d) Custody of Certificates. Any stock certificate(s) evidencing
shares of the Restricted Stock shall be held in custody by a bank or other
institution, or by the Company itself (at the Company's election), until
such shares of Restricted Stock are Vested, or until such shares of
Restricted Stock are canceled and forfeited, in accordance with the
provisions of this Agreement. The Executive hereby agrees, as a condition
to the award of Restricted Stock hereunder, to deliver to the Company a
stock power endorsed in blank relating to the Restricted Stock covered by
this Agreement so that, in the event of cancellation and forfeiture of
shares of Restricted Stock, those shares will be transferred to the
Company.
9. Miscellaneous. This Agreement (a) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral, among
the Parties with respect to the subject matter hereof, provided that if any
provision of this Agreement conflicts with any provision of the Employment
Agreement, the provision of the Employment Agreement shall control; (b) is not
intended to confer upon any other persons any rights or remedies hereunder,
except as hereinafter provided; (c) shall be binding on the Parties hereto and
their respective heirs, executors, personal representatives, successors and
assigns, and to any permitted transferees expressly permitted herein, and shall
not be assigned by operation of law or otherwise except as expressly permitted
herein, and any attempt to do so shall be void; (d) in case any provision in
this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby; (e) may be amended only by a written instrument
duly executed by the Parties hereto; (f) may be executed in counterparts, each
of which shall be an original, but each of which together shall constitute one
and the same agreement; and (g) shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of Illinois.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Restricted Stock
Agreement to be executed as of the date first written above.
INFORMATION RESOURCES, INC.
ATTEST: By: /s/ Xxxxxx X. Xxxxxx, Xx.
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/s/ Xxxxxx X. Xxxx Xxxxxx X. Xxxxxx, Xx.
------------------ Chief Executive Officer
Xxxxxx X. Xxxx
Assistant Secretary
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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