KULICKE AND SOFFA INDUSTRIES, INC. Restricted Share Unit Award Agreement
Exhibit
10.5
KULICKE
AND XXXXX INDUSTRIES, INC.
2009
EQUITY PLAN
This
Restricted Share Unit Award Agreement (the “Agreement”) dated as
of ________________ (the “Award Date”) is between Kulicke and Xxxxx
Industries, Inc. (the “Company”) and Name (the
“Participant”) pursuant to the Kulicke and Xxxxx Industries, Inc. 2009 Equity Plan (the
“Plan”). Capitalized terms that are not defined herein shall have the
same meanings given to such terms in the Plan.
WHEREAS,
the Committee has authorized the grant to the Participant of Restricted Share
Units in accordance with the provisions of the Plan, a copy of which is attached
hereto; and
WHEREAS,
the Participant and the Company desire to enter into this Agreement to evidence
and confirm the grant of such Restricted Share Units on the terms and conditions
set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
for other good and valuable consideration, the legal sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Grant of Restricted Share
Units. The Company hereby grants to the Participant an Award
of # of units
Restricted Share Units. Upon fulfillment of the requirements set
forth below, the Participant shall have the right to receive one share of Common
Stock of the Company (“Share”) for each earned Restricted Share
Unit. This grant is in all respects limited and conditioned as
hereinafter provided, and is subject in all respects to the terms and conditions
of the Plan now in effect and as it may be amended from time to time (but only
to the extent that such amendments apply to outstanding grants of Restricted
Share Units). Such terms and conditions are incorporated herein by
reference, made a part hereof, and shall control in the event of any conflict
with any other terms of this Agreement.
2. Restricted Share Unit
Vesting. The Participant shall vest in the Restricted Share
Units granted under this Agreement (as stated in Paragraph 1) in equal
installments over a period of three years, one-third on each anniversary of the
Award Date, provided the Participant remains continuously employed through each
vesting date.
3. Delivery of Shares upon
Vesting. For each vested Restricted Share Unit, one Share
shall be delivered to the Participant as soon as administratively practicable
following the vesting date, but no later than the fifteenth day of the third
month following the end of the calendar year in which such vesting date
occurs.
4. Termination of
Service. If the Participant terminates employment with the Company and
Related Corporations for any reason (including death and Disability), all
unvested Restricted Share Units at the time of such termination of employment
shall be forfeited.
Notwithstanding
the foregoing, in the event of a Participant’s involuntary termination without
Cause, the Committee may, in its sole discretion, upon the occurrence of such
event, accelerate the vesting of a pro rata portion of the Restricted Share
Units which would otherwise vest on the next anniversary of the Award Date (the
“Anniversary Date”). The pro rata portion will be calculated based on
vesting months as measured from the day of the month on which the Grant was made
to the corresponding day of each succeeding month. The vesting date
for this purpose shall be the date of the Committee’s decision to accelerate
vesting. There is no entitlement to such accelerated vesting and the
Committee shall exercise such discretion only in limited and special
circumstances.
5. Adjustment in
Capitalization. In the event any stock dividend, stock split,
or similar change in the capitalization of the Company affects the number of
issued Shares such that an adjustment is required in order to preserve, or to
prevent the enlargement of, the benefits or potential benefits intended to be
made available under this Award, then the number of Restricted Share Units shall
be proportionately adjusted as provided under the terms of the
Plan. Unless the Committee determines otherwise, the number of
Restricted Share Units subject to this Award shall always be a whole
number.
6. Certain Corporate
Transactions. In the event of a corporate transaction (as, for
example, a merger, consolidation, acquisition of property or stock, separation,
reorganization, or liquidation), each outstanding Award shall be assumed by the
surviving or successor entity; provided, however, that in the event of a
proposed corporate transaction, the Committee may terminate all or a portion of
any outstanding Award, if it determines that such termination is in the best
interests of the Company.
If the Participant will, following the
corporate transaction, be employed by or otherwise providing services to an
entity which is a surviving or acquiring entity in such transaction or an
affiliate of such an entity, the Committee may, in lieu of the action described
above with respect to outstanding Awards, arrange to have such surviving or
acquiring entity or affiliate grant to the Participant a replacement award
which, in the judgment of the Committee, is substantially equivalent to the
Award.
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8. Restrictions on
Transfer. Restricted Share Units may not be sold, assigned,
hypothecated, pledged or otherwise transferred or encumbered in any manner
except by will or the laws of descent and distribution.
9. Withholding of
Taxes. The obligation of the Company to deliver Shares shall
be subject to applicable Federal, state and local tax withholding
requirements. The Committee may require the Participant to remit to
the Company an amount sufficient to satisfy the withholding requirements or may,
in its discretion, permit or require the Participant, subject to the provisions
of the Plan and withholding rules established by the Committee, to satisfy the
withholding tax, in whole or in part, by electing to have the Company withhold
Shares (or by returning previously acquired Shares to the
Company). Such election must be made in compliance with and subject
to the withholding rules, and the Company may limit the number of Shares
withheld to satisfy the minimum tax withholding requirements to the extent
necessary to avoid adverse accounting consequences.
10. No Rights as a
Shareholder. Until Shares are issued, if at all, in
satisfaction of the Company’s obligations under this Award, in the time and
manner specified above, the Participant shall have no rights as a
shareholder.
11. No Right to Continued
Employment. Neither the execution and delivery hereof nor the
granting of the Award shall constitute or be evidence of any agreement or
understanding, express or implied, on the part of the Company or any of its
Related Corporations to employ or continue the employment of the Participant for
any period.
12. Governing
Law. The Award and the legal relations between the parties
shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania (without reference to the principles of conflicts
of law).
13. Signature in
Counterpart. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signature
thereto and hereto were upon the same instrument.
14. Binding Effect;
Benefits. This Agreement shall be binding upon and inure to the benefit
of the Company and the Participant and their respective successors and permitted
assigns. Nothing in this Agreement, express or implied, is intended
or shall be construed to give any person other than the Company or the
Participant or their respective successors or assigns any legal or equitable
right, remedy or claim under or in respect of any agreement or any provision
contained herein.
15. Amendment. This
Agreement may not be altered, modified or amended except by a written instrument
signed by the Company and the Participant.
16. Sections and Other
Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the Company, by its
duly authorized officer, and the Participant has executed this Agreement in
duplicate as of the day and year first above written.
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KULICKE
AND XXXXX INDUSTRIES, INC.
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By:
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Name: Xxxxx
X. Xxxxxxxx
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Title: VP
& General Counsel
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By:
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Participant
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