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(a)
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Time-Based Vesting. Contingent upon the Executive remaining in the continuous employment of the Company (or subsidiary) from the Date of Grant through the applicable vesting date set forth below, the shares of Restricted Stock shall vest in accordance with the following schedule:
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(i)
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33⅓% of the shares of the Restricted Stock will vest on September 24, 2015;
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(ii)
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33⅓% of the shares of the Restricted Stock will vest on September 24, 2016; and
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(iii)
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33⅓% of the shares of the Restricted Stock will vest on September 24, 2017.
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(b)
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Additional Vesting Events. Notwithstanding the foregoing, any unvested shares of the Restricted Stock shall become fully vested upon the occurrence of any of the following:
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(i)
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the Company’s termination of the Executive without “Cause” or the Executive’s resignation for “Good Reason” (as such terms are defined in
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Employment Agreement between the Company and the Executive, dated September 24, 2014 (the “Employment Agreement”));
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(ii)
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the Executive’s termination of employment due to the Executive’s death or “Disability” (as such term is defined in the Employment Agreement); or
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(iii)
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the occurrence of a Change in Control (as defined below).
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(c)
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For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following events after the Date of Grant:
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(i)
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The acquisition or holding by any person of Beneficial Ownership (as defined in Rule 13d-3 of the General Rules and Regulations of the Securities Exchange Act of 1934) of combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of a majority of the Board (the “Outstanding Company Voting Securities”); provided, that for purposes of this Section, any such acquisition or holding by any of the following entities shall not by itself constitute a Change in Control: (A) a person whole on the Date of Grant is the Beneficial Owner of 30% or more of the Outstanding Company Voting Securities, (B) the Company or any affiliate, or (C) any employee benefit plan (or related trust) sponsored or maintained by the Company or any of its affiliates;
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(ii)
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Individuals who constitute the Board as of the Date of Grant hereof (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided that any individual becoming a director subsequent to the Date of Grant whose election, or nomination for election by the Company’s stockholders, was approved by the Nominating Committee of the Board and/or the subcommittees of such Nominating Committee in accordance with the Company’s Amended and Restated Certificate of Incorporation and By-laws shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election or removal of the directors of the Company or other actual or threatened solicitation of proxies of consents by or on behalf of a person other than the Board;
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(iii)
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Consummation of a reorganization, merger, or consolidation to which the Company is a party or a sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case unless, following such Business Combination: the shareholders of the Company immediately before such event continue to hold, directly or indirectly, (A) more than fifty percent (50%) of the Outstanding Company Voting Securities of the Company or a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more direct or indirect
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subsidiaries (the Company or such other entity resulting from Business Combination, the “Successor Entity”) and (B) more than 50% of the equity ownership interests of the Successor Entity; or
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(iv)
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Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.
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(d)
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Forfeiture of Restricted Stock. The Executive shall automatically and immediately forfeit all unvested shares of Restricted Stock subject to this Agreement upon the Company’s termination of the Executive’s employment for Cause or the Executive’s resignation without Good Reason.
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(a)
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The Board of the Company shall equitably and proportionally adjust the number and kind of shares of Restricted Stock and other relevant terms set forth in this Agreement, in the event of a stock dividend, stock split or combination of shares, recapitalization or merger in which the Company is the surviving corporation, or other change in the Company’s corporate structure or capital stock (including, but not limited to, the creation or issuance to stockholders generally of rights, options or warrants for the purchase of common stock or preferred stock of the Company), as necessary or appropriate to preserve the intended benefits of the Restricted Stock for the Company and the Executive. For the avoidance of doubt, there shall be no adjustment solely to maintain the percentage ownership that the Restricted Stock represents in the Company’s outstanding equity as of the Date of Grant (i.e., “anti-dilution adjustment”).
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(b)
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If the Company is party to a consolidation or merger in which the Company is not the surviving corporation, a transaction that results in the acquisition of substantially all of the Company’s outstanding stock by a single person or entity, or a sale or transfer of substantially all of the Company’s assets or if a Change in Control otherwise occurs, then the Board may take any actions with respect to outstanding Restricted Stock as the Board deems appropriate, consistent with applicable provisions of the Code and any applicable federal or state securities laws.
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(c)
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Notwithstanding anything in this Agreement to the contrary, the Board may take the foregoing actions without the consent of the Executive, and the Board’s determination shall be conclusive and binding on all persons for all purposes.
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(a)
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to prescribe, amend and rescind policies relating to this Agreement, and to interpret the Agreement, including defining terms not otherwise defined;
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(b)
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to establish or verify the extent of satisfaction of any performance conditions or other conditions applicable to the grant, issuance, exercisability, vesting and/or ability to retain any Restricted Stock;
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(c)
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to determine whether, and the extent to which, adjustments are required pursuant to Section 16; and
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(d)
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to interpret and construe this Agreement to make exceptions to any provisions for the benefit of the Company.
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(a)
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Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of the Agreement to the substantive law of another jurisdiction.
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(b)
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Legend. The certificates for shares of Restricted Stock may include any legend which the Board deems appropriate to reflect any restrictions on transfer of such Restricted Stock and any other legend deemed desirable by the Company’s counsel to comply with applicable securities laws.
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(c)
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Notices. Any notice, request, consent, or communication under this Agreement shall be effective only if it is in writing and shall be deemed to have been given when personally delivered or three (3) days after being deposited in the United States mail, certified or registered, postage prepaid, return receipt requested and addressed to the party at its or his last known address. The address of any party may be changed by notice in writing to the other party duly served in accordance with this Section.
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(d)
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Failure to Enforce Not a Waiver. The failure of either party hereto to enforce at any time any provision of this Agreement shall in no way be construed to be a waiver of such provision or of any other provision hereof.
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(e)
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Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original but all of which together shall represent one and the same agreement.
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(f)
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Severability. In the event any provision of this Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, and the Agreement shall be construed and enforced as if the illegal or invalid provision had not been included.
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(g)
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Requirements of Law. The issuance of shares of Restricted Stock under this Agreement shall be subject to all applicable laws, rules, and regulations, and to
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such approvals by any governmental agencies or national securities exchanges as may be required.
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(h)
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Modifications; Entire Agreement; Headings. This Agreement cannot be changed or terminated orally. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and, specifically and without limitation, any provisions concerning the vesting of the shares of Restricted Stock set forth in the Subscription Agreement, to the extent inconsistent with the terms contained in this Agreement, shall be considered null and void. The section headings herein are intended for reference only and shall not affect the interpretation hereof.
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PROFESSIONAL DIVERSITY NETWORK, INC.,
a Delaware corporation
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By:
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/s/ David Mecklenburger | ||
Name: | David Mecklenburger | ||
Title: |
Chief Financial Officer
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/s/ Star Jones | 12/30/2014 | |
Star Jones | Date |