UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of

the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): March 13, 2020

 

GLORY STAR NEW MEDIA GROUP HOLDINGS LIMITED

(Exact name of registrant as specified in our charter)

 

Cayman Islands   001-38631   N/A
(State or Other Jurisdiction
of Incorporation)
  (Commission
File Number)
 

(IRS Employer

Identification No.)

 

22F, Block B, Xinhua Technology Building,
No. 8 Tuofangying South Road,
Jiuxianqiao, Chaoyang District, Beijing, China
  100016
(Address of Principal Executive Offices)   (Zip Code)

 

+86-138-1035-5988

(Registrant’s telephone number, including area code)

 

TKK Symphony Acquisition Corporation

c/o Texas Kang Kai Capital Management (Hong Kong) Limited

2039, 2/F United Center,

95 Queensway Admiralty, Hong Kong

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
Ordinary Shares, par value $0.0001 per share   GSMG   The NASDAQ Stock Market LLC
Warrants, each exercisable for one-half of one Ordinary Share   GSMGW   The NASDAQ Stock Market LLC

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ☒

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

 

 

 

Item 3.02 Unregistered Sales of Equity Securities.

 

The information contained in Item 5.02 of this Current Report on Form 8-K is incorporated herein by reference.

 

Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers

 

On March 13, 2020, the Board of Directors of Glory Star New Media Group Holdings Limited (the “Company”), approved a form of independent director agreement (“Agreement”) and restricted stock award agreement (“Award”), copies of which are filed herewith as Exhibits 10.1 and 10.2, respectively, and incorporated by reference herein.

 

On March 13, 2020, the three independent directors of the Company, being Ming Shu Leung, Yong Li and Joanne Ng, each entered into the Agreement and Award with the Company. Pursuant to the Agreement, during the term of service as a director of the Company, each independent director of the Company shall be entitled to a fee of $2,000 per month ($24,000 per year) and 2,000 ordinary shares (“Shares”) of the Company per year of service. On March 13, 2020, the Company granted each independent director 2,000 Shares pursuant to the Award under the Company’s 2019 Equity Incentive Plan. All of the Shares vests upon the date of grant.

 

The issuance of the Shares is exempt from the registration requirements of the Securities Act of 1933, as amended, pursuant to Section 4(a)(2) and/or Regulation S thereof.

 

Item 9.01 Financial Statement and Exhibits

 

(d) Exhibits

 

Exhibit No.   Description
10.1   Form of independent director agreement
10.2   Form of restricted stock award agreement

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on our behalf by the undersigned hereunto duly authorized.

 

  Glory Star New Media Group Holdings Limited
   
  By:  /s/ Bing Zhang
   

Bing Zhang

Chief Executive Officer

     
Dated: March 17, 2020    

 

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Exhibit 10.1

 

Glory Star New Media Group Holdings Limited

 

INDEPENDENT DIRECTOR AGREEMENT

 

This Independent Director Agreement (the “Agreement”) is made and entered into as of _________, _____, by and between Glory Star New Media Group Holdings Limited, a Cayman Islands exempted company (the “Company”), and ___________, an individual (“Director”).

 

I. SERVICES

 

1.1 Board of Directors. Director agrees to perform such tasks as may be necessary to fulfill Director’s obligations as a member of the Board and its committees and serve as a director so long as he is duly appointed or elected and qualified in accordance with the applicable provisions of the Company’s Second Amended and Restated Memorandum and Articles of Association (“Charter”) and any necessary approval by the Company’s shareholders and/or Board, and until such time as he resigns, fails to stand for election, fails to be elected by the shareholders of the Company or is removed from his position. Director may at any time and for any reason resign or be removed from such position consistent with the Charter (subject to any other contractual obligation or other obligation imposed by operation of law), in which event the Company shall have no obligation under this Agreement with respect to the Director.

 

1.2 Director Services. The Director shall provide the following Services (“Director Services”):

 

(a) During the term of services as a director of the Company (“Directorship Term”), the Director make reasonable business efforts to attend all Board meetings, serve on appropriate subcommittees as reasonably requested by the Board, make himself available to the Company at mutually convenient times and places, attend external meetings and presentations, as appropriate and convenient, and perform such duties, services and responsibilities, and have the authority commensurate to such position.

 

(b) The Director will use his best efforts to promote the interests of the Company. The Company recognizes that the Director (i) is or may become a full-time executive employee of another entity and that his responsibilities to such entity must have priority and (ii) sits or may sit on the board of directors of other entities, subject to any limitations set forth by the Sarbanes-Oxley Act of 2002 and limitations provided by any exchange or quotation service on which the Company’s common stock is listed or traded. Notwithstanding the same, the Director will provide the Company with prior written notice of any future commitments to such entities and use reasonable business efforts to coordinate his respective commitments so as to fulfill his obligations to the Company and, in any event, will fulfill his legal obligations as a Director. Other than as set forth above, the Director will not, without the prior notification to the Board, engage in any other business activity which could materially interfere with the performance of his duties, services and responsibilities hereunder or which is in violation of the reasonable policies established from time to time by the Company, provided that the foregoing shall in no way limit his activities on behalf of (i) any current employer and its affiliates or (ii) the board of directors of any entities on which he currently sits. At such time as the Board receives such notification, the Board may require the resignation of the Director if it determines that such business activity does in fact materially interfere with the performance of the Director’s duties, services and responsibilities hereunder.

 

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1.3 Term. This Agreement shall terminate upon the “Expiration Date” which shall be the earlier of the date on which Director ceases to be a member of the Board for any reason, including death, resignation, removal, or failure to be elected by the stockholders of the Company, or the date of termination of this Agreement in accordance with Section 5.2 hereof.

 

II. COMPENSATION

 

2.1 Expense Reimbursement. The Company shall reimburse Director for all reasonable travel and other out-of-pocket expenses incurred in connection with the Director Services rendered by Director.

 

2.2 Fees to Director. During the Directorship Term, the Company agrees to pay Director a fee of $______ per month ($_________ per year). In addition, pursuant to the Company’s 2019 Equity Incentive Plan, the Director will also receive _______ ordinary shares of the Company (“Shares”) per year for the Director Services. The Company and the Director acknowledge that under the Bylaws of the Company, the Board of Directors shall have authority to fix the compensation of directors.

 

2.3 Director and Officer Liability Insurance. The Company will use its best efforts to maintain a customary director and officer liability insurance policy for all Board members and such policy will cover Director to the same extent as other directors and officers covered under the policy.

 

2.4 Independent Contractor. The Director’s status during the Directorship Term shall be that of an independent contractor and not, for any purpose, that of an employee or agent with authority to bind the Company in any respect. All payments and other consideration made or provided to the Director under this Section 2 shall be made or provided without withholding or deduction of any kind, and the Director shall assume sole responsibility for discharging all tax or other obligations associated therewith.

 

III. Confidentiality and nondisclosure

 

3.1 Confidentiality. During the term of this Agreement, and for a period of three (3) years after the Expiration Date, Director shall maintain in strict confidence all information he has obtained or shall obtain from the Company, which the Company has designated as “confidential” or which is by its nature confidential, relating to the Company’s business, operations, properties, assets, services, condition (financial or otherwise), liabilities, employee relations, customers (including customer usage statistics), suppliers, prospects, technology, or trade secrets, except to the extent such information (i) is in the public domain through no act or omission of the Company, (ii) is required to be disclosed by law or a valid order by a court or other governmental body, or (iii) is independently learned by Director outside of this relationship (the “Confidential Information”).

 

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3.2 Nondisclosure and Nonuse Obligations. Director will use the Confidential Information solely to perform his obligations for the benefit of the Company hereunder. Director will treat all Confidential Information of the Company with the same degree of care as Director treats his own Confidential Information, and Director will use his best efforts to protect the Confidential Information. Director will not use the Confidential Information for his own benefit or the benefit of any other person or entity, except as may be specifically permitted in this Agreement. Director will immediately give notice to the Company of any unauthorized use or disclosure by or through him, or of which he becomes aware, of the Confidential Information.

 

3.3 Return of Company Property. All materials furnished to Director by the Company, whether delivered to Director by the Company or made by Director in the performance of Director Services under this Agreement (the “Company Property”), are the sole and exclusive property of the Company. Director agrees to promptly deliver the original and any copies of the Company Property to the Company at any time upon the Company’s request. Upon termination of this Agreement by either party for any reason, Director agrees to promptly deliver to the Company or destroy, at the Company’s option, the original and any copies of the Company Property. Director agrees to certify in writing that Director has so returned or destroyed all such Company Property.

 

3.4 Insider Trading Guidelines. Director acknowledges that he has received and executed the Company’s Insider Trading Compliance Policy.

 

IV. COVENANTS OF DIRECTOR

 

4.1 No Conflict of Interest. During the term of this Agreement, and for a period of one (1) year after the Expiration Date, Director shall not be employed by, own, manage, control or participate in the ownership, management, operation or control of any person, firm, partnership, corporation or unincorporated association or entity of any kind that is competitive with the Company or otherwise undertake any obligation inconsistent with the terms hereof, provided that Director may continue Director’s current affiliation or other current relationships with the entity or entities described on Exhibit A (all of which entities are referred to collectively as “Current Affiliations”). This Agreement is subject to the current terms and agreements governing Director’s relationship with Current Affiliations, and nothing in this Agreement is intended to be or will be construed to inhibit or limit any of Director’s obligations to Current Affiliations. Director represents that nothing in this Agreement conflicts with Director’s obligations to Current Affiliations. A business shall be deemed to be “competitive with the Company” for purpose of this Article IV only if and to the extent it engages in a business substantially similar to the Company’s business.

 

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4.2 Noninterference with Business. During the term of this Agreement, and for a period of one (1) year after the Expiration Date, Director agrees not to interfere with the business of the Company in any manner. By way of example and not of limitation, Director agrees not to solicit or induce any employee, independent contractor, customer or supplier of the Company to terminate or breach his, her or its employment, contractual or other relationship with the Company.

 

V. TERM AND TERMINATION

 

5.1 Term. This Agreement is effective as of the date first written above and will continue until the Expiration Date.

 

5.2 Survival. The rights and obligations contained in Articles III and IV will survive any termination or expiration of this Agreement.

 

VI. MISCELLANEOUS

 

6.1 Assignment. Except as expressly permitted by this Agreement, neither party shall assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns.

 

6.2 Remedies. The Director agrees that any breach of the terms of this Articles III and IV would result in irreparable injury and damage to the Company for which the Company would have no adequate remedy at law; the Director therefore also agrees that in the event of said breach or any threat of breach, the Company shall be entitled to an immediate injunction and restraining order to prevent such breach and/or threatened breach and/or continued breach by the Director and/or any and all entities acting for and/or with the Director, without having to prove damages or paying a bond, in addition to any other remedies to which the Company may be entitled at law or in equity. The terms of this Section shall not prevent the Company from pursuing any other available remedies for any breach or threatened breach hereof, including, but not limited to, the recovery of damages from the Director. The Director acknowledges that the Company would not have entered into this Agreement had the Director not agreed to the provisions of this Section 6.2.

 

6.3 No Waiver. The failure of any party to insist upon the strict observance and performance of the terms of this Agreement shall not be deemed a waiver of other obligations hereunder, nor shall it be considered a future or continuing waiver of the same terms.

 

6.4 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth on the signature page of this Agreement or such other address as either party may specify in writing.

 

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6.5 Governing Law. This Agreement shall be governed in all respects by the laws of the People’s Republic of China.

 

6.6 Severability. Should any provisions of this Agreement be held by a court to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.

 

6.7 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all Director Services undertaken by Director for the Company.

 

6.8 Amendments. This Agreement may only be amended, modified or changed by an agreement signed by the Company and Director. The terms contained herein may not be altered, supplemented or interpreted by any course of dealing or practices.

 

6.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

[Rest of page intentionally left blank; signature page follows]

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

Company:   Glory Star New Media Group Holdings Limited
Address:  

22nd Floor, Block B, Xinhua Technology Building,

No.8 Tuofangying South Road, Chaoyang District,

Beijing, China

     

 

By:

  Name: Bing Zhang
  Title: Chairman & Chief Executive Officer

   
Director:    

Address:

 

     
By:

 

 

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Exhibit 10.2

 

GLORY STAR NEW MEDIA GROUP HOLDINGS LIMITED

RESTRICTED STOCK GRANT NOTICE

 

Glory Star New Media Group Holdings Limited, a Cayman Islands exempt company (together with any successor thereof, the “Company”), pursuant to its 2019 Equity Incentive Plan, as amended from time to time (the “Plan”), hereby grants to the holder listed below (“Participant”), the number of shares of the Company’s ordinary shares, par value $0.0001, set forth below (individually and collectively referred to as the “Restricted Shares”). The Restricted Shares are subject to all of the terms and conditions set forth herein and in the Restricted Stock Award Agreement attached hereto as Exhibit A (the “Restricted Stock Agreement”) and the Plan, each of which are incorporated herein by reference. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Grant Notice and the Restricted Stock Agreement.

 

Participant:    
     
Grant Date:    
     
Total Number of Restricted Shares:    
     
Period of Restrictions:   The Restricted Shares shall initially be unvested. The Restricted Shares shall vest and the restrictions thereon shall lapse according to the following schedule, subject to Participant’s continuous service with the Company through and including the applicable vesting date:  

Subject to Section 3.1 of the Restricted Stock Agreement and Section 8 of the Plan, in no event shall any unvested portion of the Restricted Shares vest after Participant’s termination of service.

 

As a condition to the grant of the Restricted Shares, Participant represents and warrants that Participant is purchasing the Restricted Shares solely for investment purposes and not with an intention to transfer, sell or otherwise dispose of such Restricted Shares, except as permitted pursuant to the Plan and in compliance with applicable securities laws. Participant also acknowledges that Participant understands that the Restricted Shares are subject to the transfer restrictions under the Plan and the Restricted Stock Agreement. Each certificate evidencing Restricted Shares issued to the Participant hereunder shall bear a legend in substantially the following form:

 

THE OFFER AND SALE OF THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (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, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT.

 

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By signing below, Participant agrees to be bound by the terms and conditions of the Plan, the Restricted Stock Agreement and this Grant Notice. Participant has reviewed the Restricted Stock Agreement, the Plan and this Grant Notice in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Grant Notice and fully understands all provisions of this Grant Notice, the Restricted Stock Agreement and the Plan. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan, this Grant Notice or the Restricted Stock Agreement.

 

IN WITNESS WHEREOF, the undersigned have executed this Grant Notice effective as of the Grant Date:

 

 

Participant

 

 

 

Company

 

Glory Star New Media Group Holdings Limited

     
     
Name:   Bing Zhang, Chief Executive Officer

 

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EXHIBIT A

 

THE SECURITIES REPRESENTED BY THIS RESTRICTED STOCK AWARD AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME WITHOUT THE COMPANY’S PRIOR WRITTEN CONSENT WHICH MAY BE GRANTED OR WITHHELD IN THE COMPANY’S SOLE DISCRETION, UNLESS A REGISTRATION STATEMENT IS IN EFFECT WITH RESPECT THERETO UNDER SECURITIES ACT OF 1933 AND, IN ANY EVENT, IN COMPLIANCE WITH ANY AND ALL REASONABLE REQUIREMENTS IMPOSED BY THE COMPANY AND PURSUANT TO SECURITIES ACT OF 1933 AND ALL APPLICABLE STATE SECURITIES LAWS.

 

RESTRICTED STOCK AWARD

 

Pursuant to the Restricted Stock Grant Notice (the “Grant Notice”) to which this Restricted Stock Agreement (this “Agreement”) is attached, Glory Star New Media Group Holdings Limited, a Cayman Islands exempt company (together with any successor thereof, the “Company”), has granted to Participant restricted shares of the Company’s ordinary shares, par value $0.0001 (the “Restricted Shares”) under the Company’s 2019 Equity Incentive Plan, as amended from time to time (the “Plan”) as indicated in the Grant Notice.

 

1. General.

 

1.1 Defined Terms. Capitalized terms not specifically defined herein shall have the meanings specified in the Plan and the Grant Notice, unless the context clearly indicates otherwise.

 

1.2 Incorporation of Terms of Plan. The Restricted Shares are subject to the terms and conditions of the Plan which are incorporated herein by reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan shall control.

 

2. Grant of Restricted Shares.

 

2.1 Grant of Restricted Shares. In consideration of Participant’s employment with or service to the Company or a Subsidiary and for other good and valuable consideration, effective as of the Grant Date set forth in the Grant Notice (the “Grant Date”), the Company grants to Participant the Restricted Shares, upon the terms and conditions set forth in the Plan and this Agreement, subject to adjustments as provided in Section 15 of the Plan.

 

2.2 Consideration to the Company. In consideration of the grant of the Restricted Shares by the Company, Participant agrees to render faithful and efficient services to the Company or any Subsidiary. Nothing in the Plan or this Agreement shall confer upon Participant any right to continue in the employ or service of the Company or any Subsidiary or shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which rights are hereby expressly reserved, to discharge or terminate the services of Participant at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between the Company or a Subsidiary and Participant.

 

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3. Vesting of Restricted Shares.

 

3.1 In General.

 

(a) Subject to Section 15(c) of Plan in the event of a Change of Control, the Restricted Shares shall vest at such times as are set forth in the Grant Notice.

 

(b) Subject to Section 15(c) of Plan in the event of a Change of Control, Restricted Shares that have not vested at the date that Participant’s ceases to be a Service Provider for any reason (“Termination of Services”) shall remain unvested, except as may be otherwise provided by the Administrator or as set forth in a written agreement between the Company and Participant.

 

3.2 Restrictions. Unless and until the Restricted Shares vest, Participant shall have no right to sell, assign, transfer, pledge or otherwise encumber Restricted Shares in any manner. Any purported attempt to sell, assign, transfer, pledge or otherwise encumber any Restricted Shares under this Agreement shall be void and shall result in the forfeiture and cancellation of such Restricted Shares. Upon Participant’s Termination of Services, any Restricted Shares that are unvested as of the date of such Termination of Service (and whose vesting is not accelerated pursuant to Section 15(c) of Plan in the event of a Change of Control) shall be forfeited, and Participant shall have no further rights with respect to such Restricted Shares under this Agreement or otherwise.

 

3.3 Delivery of Shares. The Restricted Shares shall be registered in book entry in the name of Participant and shall not be transferred to Participant until the Restricted Shares have vested in accordance with this Agreement. Participant acknowledges that prior to the vesting of the Restricted Shares, the certificates representing the Restricted Shares may be stamped with a legend indicating the possibility of cancellation and the restrictions on transfer. Upon vesting of any of the Restricted Shares, such Restricted Shares shall be transferred or delivered to Participant as soon as practicable thereafter. Upon such transfer or delivery to Participant, the vested Restricted Shares will not be subject to any restrictions other than those that may arise under the securities laws or the Company’s policies.

 

3.4 Tax Withholding. The vesting of the Restricted Shares under this Agreement will result in Participant’s recognition of income for U.S. and federal tax purposes (and/or foreign tax purposes, if applicable) and shall be subject to tax and tax withholdings as appropriate. The Company or any Subsidiary shall have the authority and the right to deduct or withhold, or require Participant to remit to the Company, an amount sufficient to satisfy federal, state, local and foreign taxes (including Participant’s FICA or employment tax obligations) required by law to be withheld with respect to the vesting of the Restricted Shares. The Administrator may, in its sole discretion and in satisfaction of the foregoing requirement, withhold, or allow Participant to elect to have the Company withhold, Shares otherwise issuable upon the vesting of any of the Restricted Shares (or allow the surrender of Shares). The number of Shares so withheld or surrendered shall be limited to the number of Shares that have a Fair Market Value on the date of withholding or repurchase no greater than the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal, state, local and foreign income tax and payroll tax purposes that are applicable to supplemental taxable income.

 

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Participant agrees to consult with any tax advisors that Participant thinks necessary in connection with its receipt of the Restricted Shares and Participant acknowledges that it is not relying, and will not rely, on the Company or any of its affiliates for any tax advice.

 

3.5 Section 83(b) Election. If Participant makes an election under Section 83(b) of the Code to be taxed with respect to the Restricted Shares as of the date of transfer of the Restricted Shares rather than as of the date or dates upon which Participant would otherwise be taxable under Section 83 of the Code, Participant shall be required to deliver a copy of such election to the Company promptly after filing such election with the Internal Revenue Service.

 

3.6 Rights as Stockholder. Upon issuance of the Restricted Shares and until the forfeiture or cancellation of the Restricted Shares, Participant shall have, unless otherwise provided by the Administrator, all of the rights of a stockholder with respect to the Restricted Shares, subject to the transferability and other restrictions set forth in this Agreement, including the right to receive all dividends and other distributions paid or made with respect to the Shares; provided, however, that, in the sole discretion of the Administrator, the Administrator may provide that any extraordinary distributions with respect to the Common Stock received by Participant in the form of Shares shall be subject to the same vesting and other restrictions as the Restricted Shares to which they relate.

 

4. Other Provisions.

 

4.1 Administration. The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator in good faith shall be final, binding and conclusive upon Participant, the Company and all other interested persons. No member of the Committee or the Board, or any employee or officer of the Company, shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan, this Agreement or the Restricted Shares.

 

4.2 Adjustments Upon Specified Events. The Administrator may accelerate the vesting of the Restricted Shares in such circumstances as it, in its sole discretion, may determine. In addition, upon the occurrence of certain events relating to the Shares contemplated by Section 15(a) of the Plan (including, without limitation, an extraordinary cash dividend on such Shares), the Administrator shall make such adjustments as the Administrator deems appropriate to the Restricted Shares in order to preserve the benefits intended to be made available to Participant under this Agreement. Participant acknowledges that the Restricted Shares are subject to adjustment, modification and termination in certain events as provided in this Agreement and Article 15 of the Plan.

 

4.3 Notices. Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of the Secretary of the Company (or any other person or entity as designated by the Administrator) at the Company’s principal office, and any notice to be given to Participant shall be addressed to Participant at Participant’s last address reflected on the Company’s records. By a notice given pursuant to this Section 4.3, either party may hereafter designate a different address for notices to be given to that party. A notice shall be deemed duly given when sent via email or when sent by certified mail (return receipt requested) and deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States Postal Service.

 

4.4 Titles and Headings. Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.

 

4.5 Governing Law. The laws of the State of New York shall govern the interpretation, validity, administration, enforcement and performance of the terms of this Agreement.

 

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4.6 Conformity to Laws. Participant acknowledges that the Plan and this Agreement are intended to conform to the extent necessary with all provisions of the Securities Act of 1933, as amended, the Exchange Act and the Code, and any and all regulations and rules promulgated thereunder, state securities laws and regulations and all other Applicable Law. Notwithstanding anything herein to the contrary, the Plan shall be administered, and the Restricted Shares are granted and shall be administered only in such a manner as to conform to such laws, rules and regulations. To the extent permitted by Applicable Law, the Plan and this Agreement shall be deemed amended to the extent necessary to conform to such laws, rules and regulations.

 

4.7 Amendments, Suspension and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Committee or the Board; provided, that except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall adversely affect the Restricted Shares in any material way without the prior written consent of Participant.

 

4.8 Successors and Assigns. The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth in Section 3.2 hereof, this Agreement shall be binding upon Participant and his or her heirs, executors, administrators, successors and assigns.

 

4.9 Not a Contract of Employment. Nothing in this Agreement or in the Plan shall confer upon Participant any right to continue to serve as an employee or other service provider of the Company or any of its Subsidiaries.

 

4.10 Entire Agreement. The Plan, the Grant Notice and this Agreement (including all Exhibits thereto) constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof.

 

 

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