RESTRICTED STOCK UNIT AWARD AGREEMENT UNDER THE KITTY HAWK 2003 LONG-TERM EQUITY INCENTIVE PLAN
Exhibit 10.2
1. Award of Restricted Stock Units. Pursuant to the Kitty Hawk 2003 Long-Term
Equity Incentive Plan (the “Plan”) for Employees, Consultants and Outside Directors of Kitty Hawk,
Inc., a Delaware corporation (“Kitty Hawk”), and its Subsidiaries (collectively with Kitty Hawk,
the “Company”),
(the “Participant”)
has been granted an Award under the Plan for Restricted Stock Units (the “Awarded
Units”) which may be converted into the number of shares of Common Stock of the Company equal to
the number of Restricted Stock Units, subject to the terms and conditions of the Plan and this
Restricted Stock Unit Award Agreement (this “Agreement”) and to adjustment in accordance with
Section 7 below. The Date of Grant of this Restricted Stock Unit Award is
, 200___. Each Awarded Unit shall be a notional share of Common Stock, with
the value of each Awarded Unit being equal to the Fair Market Value of a share of Common Stock at
any time.
2. Subject to Plan. This Agreement is subject to the terms and conditions of the
Plan, and the terms of the Plan shall control to the extent inconsistent with the provisions of
this Agreement. The capitalized terms used herein that are defined in the Plan shall have the same
meanings assigned to them in the Plan. This Agreement is subject to any rules promulgated pursuant
to the Plan by the Board or the Committee and communicated to the Participant in writing.
3. Vesting; Forfeiture. Except as specifically provided in this Agreement and subject
to certain restrictions and conditions set forth in the Plan, the Awarded Units shall become vested
as follows:
a. one-fourth of the total Awarded Units shall become vested on the three month
anniversary of the Date of Grant provided the Participant is employed by (or, if the
Participant is a Consultant or Outside Director, is providing services to) the Company from
the Date of Grant to such date.
b. one-fourth of the total Awarded Units shall become vested on the six month
anniversary of the Date of Grant, provided the Participant is employed by (or, if the
Participant is a Consultant or Outside Director, is providing services to) the Company from
the Date of Grant to such date.
c. one-fourth of the total Awarded Units shall become vested on the nine month
anniversary of the Date of Grant, provided the Participant is employed by (or, if the
Participant is a Consultant or Outside Director, is providing services to) the Company from
the Date of Grant to such date.
d. one-fourth of the total Awarded Units shall become vested on the one year
anniversary of the Date of Grant, provided the Participant is employed by (or, if the
Participant is a Consultant or Outside Director, is providing services to) the Company from
the Date of Grant to such date.
Awarded Units which have become vested pursuant to the terms of this Section 3 are
collectively referred to herein as “Vested RSUs.” All other Awarded Units are collectively
referred to herein as “Unvested RSUs.”
The above vesting schedule shall cease and no Unvested RSUs shall vest upon the Participant’s
Termination of Service for any reason whatsoever. Upon the Participant’s Termination of Service,
and effective as of 5 p.m. on the Participant’s Termination of Service, the Participant shall be
deemed to have forfeited all of the Participant’s Unvested RSUs. Upon any forfeiture, all rights
of the Participant with respect to the Unvested RSUs shall cease and terminate, without any further
obligation on the part of the Company. Notwithstanding anything else to the contrary herein, upon
the occurrence of a Change of Control, all Unvested RSUs shall immediately vest and become Vested
RSUs.
4. Conversion of Vested RSUs. Upon the earlier to occur of (i) Participant’s
Termination of Service, (ii) a Change of Control or (iii) the four year anniversary of the Date of
Grant (the “Conversion Date”), the Awarded Units shall be converted into whole shares of Common
Stock equal in number to the Vested RSUs determined in accordance with Section 3 above,
provided the Participant is employed by (or, if the Participant is a Consultant or Outside
Director, is providing services to) the Company from the Date of Grant to the date of such
Termination of Service, Change of Control or Conversion Date.
Notwithstanding the foregoing, the Participant may make an election pursuant to the provisions
of this Agreement to defer the conversion of the Awarded Units for an additional period after the
original Conversion Date therefor (“Second Election”). Such a Second Election shall be made at
least twelve (12) months prior to the original Conversion Date and shall defer the original
Conversion Date set forth in Section 4(iii) above for not less than five (5) years after
such original Conversion Date. A Second Election shall be by a written notice sent by the
Participant to the Company in a form approved by the Company.
Such shares of Common Stock shall be distributed to the Participant (or his or her estate or
personal representative, as the case may be) within thirty (30) days following the date on which
the Participant’s Termination of Service, Change of Control or Conversion Date occurs, as the case
may be. From and after the date of receipt of such shares, the Participant (or the Participant’s
estate or personal representative, as the case may be) shall have full rights of transfer or resale
with respect to such stock subject to applicable state and federal laws and regulations. As used
herein, the term Change of Control shall have the meaning provided in the Plan, regardless of any
different definition of Change of Control contained in the Participant’s employment agreement with
the Company (if any).
Notwithstanding the foregoing provisions of this Section 4, in the event this Award is
subject to Section 409A of the Code, then, (i) in lieu of the definition of “Change of Control”
specified in the Plan and to the extent necessary to comply with the requirements of Section 409A
of the Code, the definition of “Change of Control” for purposes of this Award shall be the
definition provided for under Section 409A of the Code and the regulations or other guidance issued
thereunder; and (ii) in the case of a distribution on account of any Termination of Service other
than death, distribution on behalf of a Participant who is a “specified employee,” as defined in
Section 409A of the Code, shall not occur until the date which is the earlier of (x) six (6) months
following the date of said Participant’s employment termination, or (y) the date of said
Participant’s death.
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During the lifetime of the Participant, the Common Stock received upon conversion of Vested
RSUs may only be received by the Participant or his or her legal representative. If the
Participant dies prior to the date his or her Vested RSUs are converted into shares of Common Stock
as described in Section 3 above, the Common Stock relating to such converted Vested RSUs
shall be distributed to the Participant’s estate.
In the event of a conflict between the time of vesting of Unvested RSUs or the time of
conversion of Vested RSUs in this Agreement and a Participant’s employment agreement with the
Company (if any), the terms of this Agreement shall control such timing.
Notwithstanding anything to the contrary in this Agreement, if the Participant’s Termination
of Service is as a result of the Company terminating the Participant’s service as an employee for
Cause (as defined below), no Awarded Units shall be converted into shares of Common Stock and the
Participant’s rights under this Agreement shall immediately terminate and be forfeited, including
without limitation any right to receive anything of value from the Company for Vested RSUs.
“Cause” shall mean Participant’s (i) conviction by a court of competent jurisdiction of a felony or
serious misdemeanor involving moral turpitude; (ii) willful disregard of any written directive of
the Board, provided the written directive is not inconsistent with the Certificate of Incorporation
or Bylaws of the Company or applicable law; (iii) breach of his or her fiduciary duty under
circumstances that involve personal profit; (iv) breach of a material term of his or her employment
agreement (if any) with the Company (or one of its Subsidiaries); or (v) neglect of his or her
duties that has a material adverse effect on the Company.
5. No Fractional Shares. Vested RSUs may be converted only with respect to full shares,
and no fractional share of stock shall be issued.
6. Rights as Shareholder. The Participant will have no rights as a shareholder with
respect to any shares covered by this Agreement until the issuance of a certificate or certificates
to the Participant upon the conversion of Vested RSUs. The Awarded Units shall be subject to the
terms and conditions of this Agreement regarding such shares. Except as otherwise provided in
Section 7 hereof, no adjustment shall be made for dividends or other rights for which the
record date is prior to the issuance of such certificate or certificates.
7. Adjustment of Number of Awarded Units and Related Matters. The number of Awarded Units
shall be subject to adjustment in accordance with Articles 11 - 13 of the Plan.
8. The Participant’s Acknowledgments. The Participant acknowledges receipt of a copy of
the Plan, which is annexed hereto, and represents that he or she is familiar with the terms and
provisions thereof, and hereby accepts the Awarded Units subject to all the terms and provisions
thereof. The Participant hereby agrees to accept as binding, conclusive, and final all decisions
or interpretations of the Committee or the Board, as appropriate, upon any questions arising under
the Plan or this Agreement.
9. Execution of Documents. The Participant, by his or her execution of this Agreement,
hereby agrees to execute any documents requested by the Company in connection with the conversion
of the Awarded Units into shares of Common Stock pursuant to this Agreement.
10. Community Property. Each spouse individually is bound by, and such spouse’s
interest, if any, in any Awarded Units is subject to, the terms of this Agreement. Nothing in this
Agreement shall create a community property interest where none otherwise exists.
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11. Participant’s Representations. Notwithstanding any of the provisions hereof, the
Participant hereby agrees that the Company will not be obligated to issue any shares to the
Participant hereunder if the issuance of such shares shall constitute a violation by the Company of
any provision of any law or regulation of any governmental authority. Any determination in this
connection by the Company shall be final, binding, and conclusive. The obligations of the Company
and the rights of the Participant are subject to all applicable laws, rules, and regulations.
12. Investment Representation. Unless the Common Stock is issued to him or her in a
transaction registered under applicable federal and state securities laws, by his or her execution
hereof, the Participant represents and warrants to the Company that all Common Stock issued
hereunder will be acquired by the Participant for investment purposes for his or her own account
and not with any intent for resale or distribution in violation of federal or state securities
laws. Unless the Common Stock is issued to him or her in a transaction registered under the
applicable federal and state securities laws, all certificates issued with respect to the Common
Stock shall bear an appropriate restrictive investment legend and shall be held indefinitely,
unless they are subsequently registered under the applicable federal and state securities laws or
the Participant obtains an opinion of counsel, in form and substance satisfactory to the Company
and its counsel, that such registration is not required.
13. Legend. The following legend shall be inserted on a certificate evidencing Common
Stock issued upon the conversion of the Awarded Units if the shares were not issued in a
transaction registered under the applicable federal and state securities laws:
“SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED BY THE
HOLDER FOR INVESTMENT AND NOT FOR RESALE, TRANSFER OR DISTRIBUTION, HAVE
BEEN ISSUED PURSUANT TO EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF
APPLICABLE STATE AND FEDERAL SECURITIES LAWS, AND MAY NOT BE OFFERED FOR
SALE, SOLD OR TRANSFERRED OTHER THAN PURSUANT TO EFFECTIVE REGISTRATION
UNDER SUCH LAWS, OR IN TRANSACTIONS OTHERWISE IN COMPLIANCE WITH SUCH LAWS,
AND UPON EVIDENCE SATISFACTORY TO THE COMPANY OF COMPLIANCE WITH SUCH LAWS,
AS TO WHICH THE COMPANY MAY RELY UPON AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY.”
14. Law Governing. This Agreement shall be governed by, construed, and enforced in
accordance with the laws of the State of Delaware (excluding any conflict of laws rule or principle
of Delaware law that might refer the governance, construction, or interpretation of this agreement
to the laws of another state).
15. No Right to Continue Service or Employment. Nothing herein shall be construed to
confer upon the Participant the right to continue in the employ or to provide services to the
Company, whether as an employee, a board member or as a Consultant, or to interfere with or
restrict in any way the right of the Company to discharge the Participant as an employee, a board
member or Consultant at any time.
16. Legal Construction. In the event that any one or more of the terms, provisions,
or agreements that are contained in this Agreement shall be held by a court of competent
jurisdiction to be invalid, illegal, or unenforceable in any respect for any reason, the invalid,
illegal, or unenforceable term, provision, or agreement shall not affect any other term, provision,
or agreement that is contained in this
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Agreement and this Agreement shall be construed in all respects as if the invalid, illegal, or
unenforceable term, provision, or agreement had never been contained herein.
17. Covenants and Agreements as Independent Agreements. Each of the covenants and
agreements that is set forth in this Agreement shall be construed as a covenant and agreement
independent of any other provision of this Agreement. The existence of any claim or cause of
action of the Participant against the Company, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Company of the covenants and agreements
that are set forth in this Agreement.
18. Entire Agreement. This Agreement together with the Plan supersede any and all
other prior understandings and agreements, either oral or in writing, between the parties with
respect to the subject matter hereof and constitute the sole and only agreements between the
parties with respect to the said subject matter. All prior negotiations and agreements between the
parties with respect to the subject matter hereof are merged into this Agreement. Each party to
this Agreement acknowledges that no representations, inducements, promises, or agreements, orally
or otherwise, have been made by any party or by anyone acting on behalf of any party, which are not
embodied in this Agreement or the Plan and that any agreement, statement or promise that is not
contained in this Agreement or the Plan shall not be valid or binding or of any force or effect.
19. Counterparts. This Agreement may be executed in separate counterparts, each of which
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.
20. Parties Bound. The terms, provisions, and agreements that are contained in this
Agreement shall apply to, be binding upon, and inure to the benefit of the parties and their
respective heirs, executors, administrators, legal representatives, and permitted successors and
assigns, subject to the limitation on assignment expressly set forth herein.
21. Modification. No change or modification of this Agreement shall be valid or
binding upon the parties unless the change or modification is in writing and signed by the parties;
provided, however, that the Company may change or modify this Agreement without the Participant’s
consent or signature if the Company determines, in its sole discretion, that such change or
modification is necessary for purposes of compliance with or exemption from the requirements of
Section 409A of the Code or any regulations or other guidance issued thereunder.
22. Headings. The headings that are used in this Agreement are used for reference and
convenience purposes only and do not constitute substantive matters to be considered in construing
the terms and provisions of this Agreement.
23. Gender and Number. Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words in the singular number shall be held to include
the plural, and vice versa, unless the context requires otherwise.
24. Notice. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered only when actually received by the Company or by the Participant, as the
case may be, at the addresses set forth below, or at such other addresses as they have theretofore
specified by written notice delivered in accordance herewith:
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a. Notice to the Company shall be addressed and delivered as follows:
Kitty Hawk
P.O. Box 612787
0000 Xxxx 00xx Xxxxxx — 2nd Floor
XXX Xxxxxxxxxxxxx Xxxxxxx, XX 00000
Attn: Stock Plan Administrator
Facsimile: (000) 000-0000
P.O. Box 612787
0000 Xxxx 00xx Xxxxxx — 2nd Floor
XXX Xxxxxxxxxxxxx Xxxxxxx, XX 00000
Attn: Stock Plan Administrator
Facsimile: (000) 000-0000
With a copy to the Secretary of the Company.
b. Notice to the Participant shall be addressed and delivered as set forth on the
signature page.
25. Tax Requirements. The Participant is hereby advised to consult immediately with his or
her own tax advisor regarding the tax consequences of this Agreement. Unless the Company otherwise
consents in writing to an alternative withholding method, if the Participant is an employee of the
Company, the Company shall withhold the number of shares to be delivered upon the conversion of the
Vested RSUs with an aggregate Fair Market Value that equals (but does not exceed) the amount of any
Federal, state, local, or other taxes required by law to be withheld in connection with this Award.
The Company, in its sole discretion and prior to the date of conversion, may also permit the
Participant receiving shares of Common Stock upon conversion of Vested RSUs to pay the Company the
amount of any taxes that the Company is required to withhold in connection with the Participant’s
income arising with respect to this Award. Such payments shall be required to be made prior to the
delivery of any certificate representing shares of Common Stock. Such payment, if the Company, in
its sole discretion, so consents in writing, may be made (i) by the delivery of cash to the Company
in an amount that equals or exceeds the required tax withholding obligations of the Company; (ii)
if the Company, in its sole discretion, so consents in writing, the actual delivery by the
Participant to the Company of shares of Common Stock other than (A) Restricted Stock or (B) Common
Stock that the Participant has not acquired from the Company within six (6) months prior to the
date of exercise, which shares so delivered have an aggregate Fair Market Value that equals or
exceeds the required tax withholding payment; or (iii) any combination of (i) or (ii). The Company
also may, in its sole discretion, withhold any such taxes from any other cash remuneration
otherwise paid by the Company to the Participant.
* * * * *
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IN WITNESS WHEREOF, the Company has caused this Restricted Stock Unit Award Agreement to be
executed by its duly authorized officer, and the Participant, to evidence his or her consent and
approval of all the terms hereof, has duly executed this Restricted Stock Unit Award Agreement, as
of the date specified in Section 1 hereof.
| COMPANY: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| PARTICIPANT: | ||||
| Signature | ||||
| Name: | ||||
| Address: | ||||
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